Public Bill Committee

[Hywel Williams in the Chair]

Clause 40

Kevin Brennan: I beg to move amendment 165, in clause40, page35,line45,at end insert—
‘(e) the contribution of the school to community cohesion.’.

Hywel Williams: With this it will be convenient to discuss amendment 166, in clause40,page36,line9,at end insert—
‘(c) the quality of the governance arrangements at the school;
(d) whether the financial resources made available to the school are managed effectively.’.

Kevin Brennan: Prynhawn da, Mr Williams, croeso ’nôl—good afternoon and welcome back, one and all.
We now move on to clause 40 which, as one of my hon. Friends pointed out, means we have passed halfway through the Bill and, as in football, the second half often seems to rush past quite quickly in the excitement, compared with the first half. [Interruption.] I did not quite catch that intervention, but I am sure it was very funny.
Amendments 165 and 166 would require Ofsted, respectively to inspect community cohesion and to ensure that inspections consider the financial management and governing arrangements at a school. Does the Minister share the view of the NASUWT that financial management
“is a critical area to secure the entitlement of all children and young people”?
If he thinks it is critical, why under clause 40 is Ofsted not required to inspect it?
The NASUWT was also particularly concerned about the scrutiny of compliance with the community cohesion duty and the public sector equality duties—tackling racist incidents in schools and prejudice-driven beliefs. The Schools Minister himself has taken a strong interest in bullying caused by prejudice, whether on grounds of race or sexuality or whatever is involved. Such provisions were adopted to promote equality and to tackle discrimination experienced by children and young people, which can be a real barrier to learning and success in schools.
Can the Minister tell us why the clause removes the requirement for Ofsted to inspect community cohesion? How important do the Government feel a school’s community cohesion is? What impact does he believe that the change will have on schools?

Nick Gibb: Clause 40 seeks to focus inspection on the core business of a school, in other words on pupils’ achievement, the quality of teaching, behaviour and safety and, of course, its leadership and management. I am not saying that those are the only things that matter, but they are the most important.
Amendment 165 would place an additional requirement on the chief inspector to report on a school’s contribution to community cohesion. I and other Government Members agree that community cohesion is important, but we do not accept that it should be one of the core areas for which schools are held to account through routine Ofsted inspections. As the chief inspector commented to the Committee earlier in March:
“We welcome the narrower focus on the four areas, because it gives us a chance to build on what we have been doing and to narrow the focus and look deeply, particularly at teaching and learning”.
Having to cover community cohesion separately would diminish that aspect and detract from it.
I draw the Committee’s attention to another comment made by the chief inspector when giving evidence:
“I really do value that focus”—
on the four areas—
“even at the expense of an explicit judgment and grade on community cohesion. We will expect to see that the school community is a cohesive community, that children respect one another and behave with respect to one another and that their parents feel fully engaged in the school.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 76-78, Q141 and Q145.]
That statement by the chief inspector shows general support for narrowing the focus for inspection but, at the same time, demonstrates that important aspects of community cohesion will remain within scope.

Dan Rogerson: This is an important issue to discuss, and I am pleased that the shadow Minister raised it with his probing amendment. To cast my mind back to the passage last summer of the Academies Act 2010, it was important that academies’ duties in relation to community cohesion remained in that Bill. I welcome the fact that the Government have put on record through the Minister’s comments their determination that Ofsted will consider it across a range of issues, as a thread running through everything that goes on, rather than as a discrete matter. Cohesion must presumably be judged in a cohesive way, so it should run through all the key areas on which a school is assessed.

Nick Gibb: I am grateful for my hon. Friend’s intervention. The duty to promote community cohesion remains a duty on the school. Given the comments of the chief inspector, it is clear that it will remain within the scope of what inspectors will consider, although the overall grading will not be determined by that one issue.
To develop the argument a little further, the changes that we propose will enable Ofsted to consider aspects of community cohesion much more coherently, which should result in a more meaningful assessment that is better understood by schools. At the moment, when assessing pupils’ spiritual, moral, social and cultural development, inspectors are required to evaluate pupils’ understanding of their own culture and those of others locally, regionally and nationally. That overlaps with a separate assessment of community cohesion requiring coverage of related matters. That artificial distinction causes schools and inspectors to attempt to separate their assessments to enable both areas to be judged, which is unhelpful to schools and parents.
Our proposals will require inspectors, in assessing the four core areas, to consider how schools are providing for pupils’ spiritual, moral, social and cultural development, meaning that those important aspects will be brought together to inform the overall assessment of a school in a much more coherent way. That, along with the other revisions to inspections coverage, will give parents a clearer understanding of how their child’s school is performing.
Amendment 166 seeks to add two further areas that the chief inspector must consider in reporting on the quality of education provided in a school. The hon. Member for Cardiff West will be aware that the quality of leadership and management of the school is one of the four core areas. As the consultation document launched last week by Ofsted explains:
“Governors are also expected to challenge the school and ensure that it improves. We propose to retain these as key considerations when judging the effectiveness of leadership and management.”
To add governors as a separate entry will send mixed messages to schools, governing bodies and parents about the link between the overall leadership and management of the school and governors.
Finally, on the management of financial resources in schools, we want inspectors to spend their time doing what they do best. We want them in the classrooms observing lessons, talking to children, listening to children read, observing teaching and assessing children’s educational experience. Inspectors are not auditors, unlike the hon. Member for Hartlepool and me, and we should not pretend that they are. They do not have our brilliant expertise; they have different expertise.

Iain Wright: Or our creativity, imagination and style.

Nick Gibb: Indeed. To look in detail at financial resources would involve significant investment of inspectors’ time. Currently, inspectors square the circle by almost always matching their value for money assessments with their judgments on pupil outcomes. Ofsted’s guidance is explicit about that, but how useful is it to put inspectors in the position of having routinely to make such separate assessments? Inspectors will continue to be able to report where there appear to be shortcomings in the management of resources, and that will be reflected in the leadership assessment, but it is not helpful for the legislation to refer to it separately.
The hon. Member for Cardiff mentioned prejudice-based bullying. The draft school inspection framework, on which Ofsted is consulting, proposes to
“judge pupils’ behaviour and safety by giving particular attention to…how well they are protected from bullying”.
Ofsted will look specifically at bullying when it forms a judgment on the four core areas of the behaviour and safety element. I hope that with those brief comments, the hon. Gentleman will feel able to withdraw his amendment.

Kevin Brennan: On that last point, may I genuinely and sincerely pay tribute to the Minister for the work that he is continuing to do on homophobic bullying? It is something that might not have featured highly in a Conservative Education Minister’s list of priorities in the past, and I pay tribute to him for continuing the work that was started, and building on it in government; it is extremely important, and he should be commended.
I noted the chief inspector’s comments that the Minister referred to in his response. While welcoming the inspection of the core matters, I think he used the phrase “even at the expense” of community cohesion, which illustrates its importance. The Minister has confirmed for the Committee that he regards it as important—he is nodding —as did the inspector.
I take the Minister’s point about inspectors not being auditors. I have been, as he knows, a teacher who has been subject to inspection. I am not an accountant. My hon. Friend the Member for Hartlepool is an accountant, but he does not often tell the Committee that before he became a fully fledged accountant—I think I am right in saying this—he was a turf accountant for a brief period.

Nick Gibb: What are the odds of that?

Kevin Brennan: Indeed. We do not see many of those in the House of Commons, so my hon. Friend the Member for Hartlepool brings a tremendously rich vein of experience to the Committee.
I take the Minister’s point; he said that the Government want to ensure that governors challenge schools to ensure that they improve. Having put on record our concerns and tried to tease out of the Minister his commitment to ensure that such matters will not be neglected despite the reforms that he is making, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Kevin Brennan: I have just a few points, to which I hope the Minister will respond, from some of the organisations that have commented on the clause. Save the Children told us:
“The school inspection system must focus more clearly on the specific impact of schools in improving the life chances of children from poor homes.”
In his independent review of poverty and life chances in 2010, my right hon. Friend the Member for Birkenhead (Mr Field) said:
“The Department for Education should ensure schools are held to account for reducing the attainment gap in the same way they are for improving overall attainment. Where a school has a persistent or increasing attainment gap, this should have a significant bearing on the inspection for the school.”
I certainly agree with that statement. Will the Minister confirm that he does too and will he explain how the change will help that to happen?
Save the Children also told us:
“It is crucial that the extent to which the education provided meets the needs of low-income pupils and children in care (those who are eligible for the full Pupil Premium) are specific requirements of the Chief Inspector’s report.”
The Bill’s explanatory note for clause 40 refers specifically to pupils eligible for the pupil premium, children with special educational needs and disabled children. However, only the latter two groups are mentioned in the Bill. Will the Minister explain that? The National Children’s Bureau told us that it was asking for schools to be inspected on the quality of education and other support they provide to vulnerable groups.
Unison said that Ofsted should focus on the role of support staff in delivering quality education. Aspects such as the quality of school food and the eating experience should be considered under the quality of education and social and cultural development. Will the Minister comment on whether it is his intention that the role of support staff should be covered in an inspection? Will he also explain his rationale for streamlining the coverage of inspections and what he thinks the risks, if any, are of doing that—I am sure he will tell us what benefits and rewards he thinks there will be—and how he will manage those risks?

Nick Gibb: Clause 40 sets out the foundations for a new approach to school inspection, which will enable inspectors to concentrate on the things that matter most in improving educational provision and raising standards. Every parent should have the right to send their child to a successful school—one which is led effectively and has strong teaching, where poor behaviour is not tolerated and pupils are safe, and which has high aspirations for all its pupils and does not use social and economic circumstances as an excuse for poor achievement.
An overriding objective of the Government is to close the attainment gap between those from poorer and wealthier backgrounds. We will not necessarily do that through the inspection framework, which is intended to ensure that schools have high standards. The pupil premium and the attainment of children who qualify for the pupil premium will be separately identified in attainment tables, which will focus schools on ensuring that those children achieve to the best of their ability. Attainment is one of Ofsted’s four criteria, and it always looks at qualifications achieved by a school when assessing attainment.
In addition, subsection (1) will insert new subsection (5B) in the Education Act 2005, which specifies
“the extent to which the education provided at the school meets the needs of the range of pupils at the school, and in particular the needs of…pupils who have a disability…and…pupils who have special educational needs.”
Therefore, those two groups are specifically referred to in the Bill. The consultation document produced by Ofsted—in paragraph 10 on page 8—mentions persistent low attainment and states:
“It is…important that schools reduce differences in attainment between groups in the school, including those between looked after children, pupils from different social and ethnic groups and between boys and girls. The new inspection framework will pay particular attention to such gaps in attainment and inspectors will look at what is being done to close them.”

Kevin Brennan: I am aware of that, but my point is that, although the Bill specifically refers to pupils with a disability and with special educational needs, the explanatory notes to clause 40 also refer to pupils who are eligible for the pupil premium. Why is that not referred to in the Bill?

Nick Gibb: Because that is something that inspectors will look at, as they have historically. The hon. Gentleman could also ask why the clause does not refer to looked-after children or to closing the attainment gap between children of different ethnic minority backgrounds. It is difficult to list everything, but we wanted to emphasise those two groups. It is clear from the consultation documents, and from everything else that we know about Ofsted, that it will try to close the attainment gaps between all groups at schools, including the gap between genders.
I am sure that Ofsted will take account of the contribution of support staff in a proportionate way. I urge support staff and their unions to respond to Ofsted’s consultation document. Frankly, I do not see many risks to the new framework, but Ofsted is consulting on that and will consider carefully any risks referred to it by respondents. Given all the measures that we are introducing—such as the pupil premium, and the separate column in the attainment tables for the attainment of pupils qualifying for the pupil premium—the revised framework and the provisions in the clause should tackle all the important issues raised by the hon. Gentleman. On that basis, I urge the Committee to allow the clause to stand part of the Bill.

Question put and agreed to.

Clause 40 accordingly ordered to stand part of the Bill.

Clause 41

Question proposed,That the clause stand part of the Bill.

Iain Wright: The clause relates specifically to the inspection of further education and allows for institutions to be deemed exempt from inspection. We have just debated clause 39 and the exemption of schools from inspection. I am sorry to disappoint the Committee but I do not want to reiterate the arguments made by my hon. Friend the Member for Cardiff West, although I will if the Committee so wishes. The Government Whip nods vigorously; I will put that on the record.
I want to make a point in relation to the FE regime and something that was raised by the Association of Colleges. I fully recognise that it welcomed the exemptions. The AOC is concerned that the clause allows the Secretary of State to instruct Her Majesty’s chief inspector to conduct an inspection of a college graded outstanding, but without specifying whether the college should be notified. The AOC told us:
“in whatever circumstances he did order such an inspection we think it important that the autonomy of the College is respected and therefore the governing body is formally informed that an inspection is to happen and why the Secretary of State has ordered such an inspection.”
Given that query, can the Minister assure the Committee that when the Secretary of State triggers an inspection of an exempt FE college, he will give adequate notice to the college as well as details on what triggered the inspection that was required?

John Hayes: I am delighted to be able to speak to clause 41. I will come to the hon. Gentleman’s remarks in the course of setting out very briefly the concept that he alludes to, which lies at the heart of the clause.
Alongside the provisions that recognise high quality schools, as the hon. Gentleman suggested, we recognise that many FE providers are outstanding in their leadership and management, outcomes for learners and links with the wider community. The provision acknowledges that excellence and enables regulations to be made to exempt outstanding colleges from routine inspection. The hon. Gentleman said that this has been pretty widely welcomed as a concept; indeed, he did not disagree with it. It creates greater consistency and coherence in the assumption about inspection.
The provision will allow outstanding colleges to be freed from the burden of unnecessary inspection. It puts trust in the leaders of outstanding institutions to continue to deliver high standards and to concentrate on delivering high quality learning. It gives Ofsted the freedom to adopt a proportionate approach to inspection. Instead of being bound by inspection cycles, they can use their resources to target those providers that need help to define and improve their weaknesses.
Of course, I need to reassure the Committee that Ofsted will continue to risk-assess the performance of all exempt colleges on an annual basis. If significant concerns arise, an exempt college can be brought back into the inspection cycle. That business of exempting outstanding colleges has been raised before. We also appreciate that an Ofsted inspection is a recognised and respected validation of the performance of a college. So there may be colleges, particularly those that are exempt, that would want to request an inspection if they believed it would add value to their performance information and provide information for learners, employers and the wider community. Clause 41 makes this possible by allowing the chief inspector to charge for an inspection where an FE provider requests one. It is for the chief inspector to decide whether to respond to such a request. As with schools provisions, it is not our intention that Ofsted should charge where an inspection is in response to concerns about a college. So let me reassure members of the Committee that this is not a money-making measure, but it will ensure that Ofsted resources are focused on poorly performing colleges. Any income generated from this exercise will have to be within the Treasury’s restrictions on Ofsted income.
The purpose of the clause is to give back freedom to outstanding providers. It reduces bureaucracy and, as I said, it allows Ofsted to focus on what we think is most essential and ensures that appropriate safeguards are in place in the way that I have outlined. On that basis, I hope that the Committee will endorse all that we aim to do in the Bill. I welcome the hon. Gentleman’s advice in that respect. On the further issue that was raised by the hon. Gentleman about the Secretary of State, it is appropriate that appropriate notice is given. That is a perfectly fair and reasonable point, and we will ensure that that happens.

Question put and agreed to.

Clause 41 accordingly ordered to stand part of the Bill.

Clause 42

Question proposed, That the clause stand part of the Bill.

Kevin Brennan: I do not want to say much about this clause. I thank the Minister for providing a note about it to explain the Government’s intentions, but will he briefly outline those intentions for the record?

Nick Gibb: As hon. Members will know, boarding schools are inspected on two things: education and welfare. In England, independent inspectorates carry out inspections in most independent boarding schools, and Ofsted carries out all welfare inspections. Joint inspections by Ofsted and independent inspectorates are undertaken where possible, to minimise disruption to the schools concerned, but there are two separate inspection reports, published on two separate websites. A single inspection report of the school published on a single website would be more helpful for parents and easier for schools to handle.
The Children Act 1989 gives a power, which we will now use, to remedy that position and continue the previous Government’s work in this area. We intend to appoint an independent inspectorate to undertake some boarding welfare inspections in England, as is already the case for some education inspections of independent schools. The clause therefore makes three changes consequential to the use of that power.
First, it gives a power to the Secretary of State to make regulations setting out the matters to be taken into account by him in deciding to appoint, or withdraw the appointment of, an independent inspectorate. That mirrors an existing regulation-making power in the 2008 Act on the appointment of independent inspectorates to conduct inspections of education provision in independent schools.
Secondly, it will allow Ofsted to monitor independent inspectorates’ inspections of independent boarding schools, again mirroring the current arrangements. Ofsted will produce an annual report for the Secretary of State on independent inspectorates, which will be published on the Ofsted and relevant inspectorate websites.
Thirdly, the clause gives a power to the Secretary of State to direct Ofsted to undertake a boarding inspection of any school at any time, including where the boarding provision would normally be under an appointed independent inspectorate. That mirrors a similar provision allowing him to direct Ofsted to carry out an education inspection at any time.
We believe that those measures, when taken together, will provide transparency, accountability and confidence in the arrangements for independent inspectorates to carry out inspections in independent boarding schools. The Boarding Schools Association welcomes the transfer of welfare inspections in independent schools to an independent inspectorate and has no objection to Ofsted’s monitoring role. I hope that that will provide the hon. Gentleman with a succinct description of what the clause is intending to do. I urge the Committee to allow it to stand part of the Bill.

Question put and agreed to.

Clause 42 accordingly ordered to stand part of the Bill.

Clause 43

Question proposed, That the clause stand part of the Bill.

Kevin Brennan: This clause is another that extends the powers of the Secretary of State, allowing him to intervene in schools that are causing concern. Currently, he can direct the closure of the school because it requires special measures, but the clause extends the situations in which the Secretary of State can direct a school closure. Under the clause, the Secretary of State will be able to direct the closure of a school when it has failed to comply with a performance, standards and safety warning notice, and when a school has been identified as requiring significant improvement by the chief inspector and has been issued with a notice to improve. It extends the Secretary of State’s power, so that when a local authority has been directed to consider giving a performance, standards and safety warning notice and has decided not to do so, the Secretary of State may direct the authority to give a warning notice in specified terms. When any warning notice has been given, whether following a direction or not, failure to comply with it would result in the school becoming eligible for intervention.
Will the Minister explain his rationale for introducing this clause and, in particular, outline the circumstances in which he thinks the Secretary of State’s current powers to intervene when schools are causing concern are insufficient? I know he does not like too much state power: he will only want to introduce any further extension of state power from the centre when it is absolutely necessary and based on compelling evidence. The clause encourages more frequent use by local authorities of warning notices; if not, the Secretary of State will direct their use. What safeguards does the Minister intend to put in place to avoid inappropriate or insensitive use of this power by the Secretary of State which could damage the relationships between local authorities and schools? In what circumstances does he envisage that the Secretary of State will direct a local authority to issue a warning notice?
The clause means that there will be no difference in approach between “special measures” and “notice to improve” schools. Does he recognise that Ofsted will have judged the latter category of school to have the leadership and management necessary to improve the school? In what situations does he intend that the Secretary of State will intervene in this powerful and draconian way even when Ofsted has deemed the school capable of improvement on its own? The NUT told us of their concerns that under this clause,
“schools would become eligible for closure as soon as the 15 days had elapsed”
since the issue of a valid warning notice. Does the Minister think that this is a fair and reasonable way to conduct school improvement and one that is likely to result in rising standards? How will parents and communities be consulted in any decision by the Secretary of State in Sanctuary Buildings to issue a warning notice or close a school? Can he explain how his new power to close schools will affect local authorities’ ability to strategically plan school place demand? In the case of a closure, what safeguards does the Minister intend to put in place to ensure adequate alternative provision exists?
This is another example, as I said earlier, of an additional power—there are more than 50 examples throughout the Bill of the Secretary of State taking powers to himself and potentially away from parents. Can he confirm that under the clause local provision that is critical to some groups of children and young people could be removed at the discretion of the Secretary of State, with no recourse for parents to appeal on behalf of their children? The Local Government Association told us:
“The LGA believes this runs contrary to the Government’s plans for localism and
removes the element of local discretion from the current power of the Secretary of State to direct an authority to consider issuing such a notice. We would support the removal of Clause 43”.
Does he agree with the LGA that this clause runs contrary to localism? Will this clause apply to academies? Is there any intention to use this clause to convert schools into academies? Is it possible under this clause for the Secretary of State to step in and use this power to get round the other provisions for converting a school into an academy?
I ask the Minister to explain his justification for introducing this clause and to set out the particular circumstances in which he envisages that the Secretary of State will make use of these powers. What was his compelling reason for proposing this extension of state power?

Nick Gibb: Clause 43 will amend the legal framework for maintained schools causing concern in England. The Government are committed to taking early and focused action if a school’s performance is either below the minimum floor standards or simply not good enough given the context within which the school operates. Children only have one chance at education, and we cannot allow underperforming schools, in which children are not receiving the education they deserve, to carry on unreformed. Each day that children are not being educated properly in the classroom is another day that they are held back from achieving their full potential. The Government will not hesitate to use our intervention powers to turn around underperforming schools where the schools themselves and local authorities have been unable to do so, and I have always thought that that would be the hon. Gentleman’s view.
The circumstances in which the Secretary of State can intervene in an underperforming school are inconsistent. At present, he can direct the local authority to close a school only when it is eligible for intervention because it requires special measures. By contrast, he can already intervene in other ways, such as by appointing additional governors or making an academy order where the school is eligible for intervention because it also requires improvement or has failed to comply with a warning notice. The clause will therefore extend the Secretary of State’s power to direct a local authority to close a school so that a direction may be made in the same circumstances as other intervention powers. It is right that he is able to tackle underperformance firmly and consistently.
We believe that the power to direct a school’s closure should not be confined to schools in special measures, but in all circumstances where a school is eligible for intervention because of poor performance. We are aware that one intervention solution will not fit all scenarios, which is why we believe the Secretary of State’s range of powers should be available consistently.

Kevin Brennan: What are the safeguards against an abuse of the power by the Secretary of State?

Nick Gibb: The Secretary of State is accountable to Parliament. He can do nothing without his action being scrutinised by the hon. Gentleman and other Members of the House. If he does not go through the procedures correctly as set out in statute or in common law, his decisions may undergo a judicial review. The main accountability is to the House.
The clause also enables the Secretary of State to direct the local authority to give a performance standards and safety warning notice in specified terms. As now, he will first direct the local authority to consider giving a warning notice. If the local authority decides not to do so, but he continues to believe a warning notice is necessary after considering the local authority’s reasons, he will then have the power to direct the local authority to give a warning notice in specified terms.
Members of the Committee may remember that a similar power was proposed in the Children, Schools and Families Bill. That clearly highlights the cross-party consensus on the belief that the changes will lead to improvements in standards and that they are needed. There is, however, an important distinction between the clause proposed in that Bill and this clause. While we believe that the intervention power is necessary, we do not believe that the power of the Secretary of State should be unfettered. Schools will be able to make representations to Ofsted against the warning notice, whether or not it is given as a result of a direction. Ofsted will be the final judge of whether the warning notice should have been given. If the notice is confirmed, and the school fails to take the necessary action to remedy the concerns set out in the notice, the school will then become eligible for intervention.
The hon. Gentleman mentioned that the NUT is concerned that the Government will treat schools in special measures with notice to improve in the same way as schools failing to comply with a notice. As I have just said, that is deliberate. We are committed to tackling performance in schools that are not meeting the expected standards or are failing to show that they have the capabilities to turn performance around. It is not about having a blanket approach to all schools in special measures or in other categories. Before intervening in a school, the Secretary of State will have assessed the needs of that individual school on a case-by-case basis. The provisions will ensure that he has the necessary intervention powers in those schools that most need it, not according—this is the key point—to the label that they have been given regarding their performance.
The hon. Gentleman also asked whether the clause applies to academies. However, the funding agreement is what provides the Secretary of State with powers to intervene and, under that contractual arrangement, if academies are underperforming, the Secretary of State may intervene. So the clause applies only to maintained schools.
With those comments, I hope that the Committee will allow the clause to stand part of the Bill.

Kevin Brennan: I do not intend to ask my hon. Friends to divide on the clause, but I have a comment on the Minister’s points.
I asked about the potential for abuse of the power, because it is a serious power to give the Secretary of State—to direct the closure of the school under such circumstances. In answer, he said that the Secretary of State was accountable to Parliament.
However, I simply put on record once again our concern that, to be accountable to Parliament, Ministers need to answer parliamentary questions and correspondence from Members of Parliament. That would perhaps convince us more of the accountability of the Secretary of State, if he and his Ministers did that in line with their own targets. If they do not do so, perhaps we should be given a power to put some sort of notice of intervention in place and close them down, so that accountability can be restored.
The Minister said that judicial review was then possible, but the Secretary of State has already been told by one judge in a judicial review that he is guilty of an abuse of power, which he tried to make light of on the Floor of the House. So we have some justification for being sceptical about whether those two weeks will do the trick. However, it is not my intention to divide the Committee.

Question put and agreed to.

Clause 43 accordingly ordered to stand part of the Bill.

Clause 44

Kevin Brennan: I beg to move amendment 169, in clause44, page38,line42,at beginning insert—
‘Subject to subsection (3)’.

Hywel Williams: With this it will be convenient to discuss amendment 170, in clause44,page39,line28,at end insert—
‘(3) The Secretary of State must not commence this section under section 78 (Commencement) until six months after Her Majesty’s Chief Inspector of Education, Children’s Services and Skills with the Commissioner for Local Administration have reported jointly to the Secretary of State on the operation of Part 10, Chapter 2 (Complaints: England), ASCLA 2009, and the Secretary of State has laid the report before Parliament.’.

Kevin Brennan: The clause is another example of the attack on parents’ rights that is part of the Bill.
The previous Government established a new complaints system, to deal with the problem of putting on a proper footing how complaints are dealt with in schools. The last thing we want is for complaints to clog up the system and, certainly, for trivial and vexatious complaints to stop a school doing what it should be doing.
There was a thoughtful consultation period, over quite a long time, to explore the available options for a sensible system for dealing with complaints. The objective was to provide a well thought-out and coherent system which would allow parental and student complaints to be handled if the school had exhausted its procedures. The new system required complaints to be heard through the normal system in the school, with the complainants then able to use the established office of the local government ombudsman if that did not satisfy them.
Six months after the system came into place, with minimal marketing of the new arrangements, the Government now claim that take-up is so low that they have to abolish this safety valve for the school system. That will clearly be a reduction in parental rights, so we want to hear the Minister’s explanation.
Amendments 169 and 170 would make the repeal of the power of parents to complain to the local commissioner subject to a report on the use of the provision by the chief inspector and the local government ombudsman—the commissioner for local administration. The amendments would require a full review of the new complaints procedure before it was abolished. It has been piloted in a number of local authorities. The costs in the impact assessment included start-up costs, which are not ongoing—as an accountant, the Minister will know that.
What evidence has the Minister considered to inform his decision to repeal parents’ rights to take a complaint, ultimately, to the local commissioner? Why has there not been a full and proper review of the new system? All we have is one and a half pages in the impact assessment. A piece of careful, well thought-through and well balanced work is being undone without sufficient thought and consultation.

Graham Stuart: It is a pleasure to take part in this debate, Mr Williams. I do not know whether we will have a stand part debate, but with this many amendments we may cover most of the issues. I shall speak to amendments 169 and 170, but in passing I note that my amendment 77 was not selected because it sought to delete the whole clause, which makes it immune to selection.
As we know, the Bill provides for the abolition of the local government ombudsman’s ability to hear complaints against a school. At present, the LGO, as we have heard, can hear complaints when a parent has exhausted the school’s internal complaints procedure but continues to believe that the school is acting unreasonably or unlawfully. The LGO has only been allowed to hear complaints for a short while, since last April—less than a year—and the new processes that are currently being piloted in 14 local authorities are not scheduled to be fully implemented until September 2011, so they are very much a work in progress.
I am concerned that the LGO has spent considerable time and resource developing, piloting and training its staff in an effort to implement the complaints procedure. On the face of it, the LGO appears to offer a more accessible and local route for parents to make complaints about the nature of their children’s education. I am unclear—doubtless, all will be made clear by the Minister— why the Government would want to prevent parents from making legitimate complaints about schools to a local agency.
I note that the Lamb inquiry on special educational needs and parental confidence recommended that the LGO should be able to hear complaints. It argued that allowing it to do so
“represents the potential for a unified route for individual complaints about SEN at both a school and local authority level, with more appropriate forms of redress available to parents.”
I am grateful to the Special Educational Consortium for its submissions on the subject. In the light of those, I am interested to know how the removal of the LGO’s new powers will affect the hearing of complaints about provision for children with special educational needs. For example, parents might—and often do—complain that although provision has been made for their child in a statement and the money has been received by the school, sufficient and proper provision has not been made. I am interested to hear from the Minister how we will ensure that such parents can ensure that their voices are heard. The Special Educational Consortium questions taking away the local accountability mechanism before it has been fully evaluated, especially at a time when the Department for Education faces a significantly increased work load—an awful lot of powers are coming to the Secretary of State. Perhaps the Government might reconsider the matter and if not, might at least ensure that the Department is in a position to provide answers to parents in extremis or more rapidly than it has sometimes answered parliamentary questions to date.

Pat Glass: My concerns about the clause reflect much of what has already been said, because it reduces the role of parents and devalues their importance by taking away a new and important role in the complaints structure.
The Committee heard me speak on Tuesday about my son and his school. I know the Committee will want to congratulate my son whose school was inspected by Ofsted this week. In two and a half years it has gone from “serious weaknesses” to “good with outstanding features”. I want to put it on the record that we offer our congratulations to the head and staff of Silverdale school in North Tyneside. One of the areas of outstanding practice was the work with parents. Given that the school is a secondary school for children with emotional and behavioural difficulties, and that parents face many challenges within the community, the fact that it placed such importance on working with parents reflects its understanding that a child’s education is dependent upon the compliance, co-operation and commitment of parents.
I echo what was said by the Chair of the Education Committee. I was part of the Lamb inquiry and I saw, if I needed to, the huge difference that commitment made when local authorities and schools were working with parents and not just paying lip service to working with parents. I remember many years ago—I might have said this earlier in the House—a parent saying to me, “If God gave you advice on my child, you wouldn’t take it, because God is not a professional.” It was a road to Damascus moment, because I remember thinking, “You’re absolutely right”, and from then on I changed my attitude. I have seen in practice so many times that the commitment and involvement of a parent makes a huge difference to the education of children.
So, my concerns are about the collective and cumulative impact of what I see as a weakening of parents’ rights throughout the Bill. On Tuesday, I said that the local government ombudsman has three main areas of complaint: admissions, SEN and planning. Anyone who has been on the receiving end of a local government ombudsman investigation, as I have, knows how robust and detailed the investigations are and how they get to the heart of the issue. I have seen parents’ frustration when they understand that the area of their complaint that refers to the local authority can be dealt with by the local government ombudsman, but the part of their complaint—usually the most significant—that relates to the school cannot, and that part falls. Given that the local government ombudsman would only get involved as a matter of last resort, and only where there has been clear maladministration that leads to injustice, I simply do not understand why the Government are repealing this part of the legislation.
Being investigated by the local government ombudsman is not easy, but I am a firm believer that we are fastest when we are chased and that such things result in better practice. I repeat what the Chair of the Education Committee said. I have seen parents literally pulling their hair out. They have had a statement for their child—it has not been easy to obtain—they have seen the money delegated to the school and the school is simply not delivering the provisions in the statement. There is no point in taking that to an SEN tribunal, because it will only look at the statement, and they have nowhere else to go. Will the Minister look at the measure again? I see it as a weakening of the role of parents and it is happening throughout the Bill. I think it is regrettable and it is having a cumulative effect, so—particularly in relation to the issue of parents’ rights—will the Minister reconsider?

John Hayes: The shadow Minister assumed my hon. Friend would respond, but I am not an accountant and even my relationship with turf accountants has been extremely rare. But I am a parent. Actually, I come from a long line of parents, so I speak with some familiar authority, at least on these matters.
Amendments 169 and 170 would require a report on the operation of the local government ombudsman school complaints service to be laid before Parliament before the clause can be commenced. Members who have spoken so far have made the case for that. I want to speak to the amendments, as well as to put the clause into context.
Let me be clear: our aim is to ensure that parents and schools have access to a complaints system that is quick, transparent, simple and cost-effective and provides proper independence. That is what a complaints system should be. As we have discussed before, the Government’s determination is to devolve greater authority to schools in these matters. Perhaps I should set that in an even broader context. We have the view—I think and hope that it is an increasingly orthodox view—that the way to create the most responsive system is to exercise power as close as possible to where it has its effect.
I think most of us would recognise that principle, because it lies at the heart of our representative democracy and what we do as Members of Parliament. That principle runs throughout this legislation. It has been articulated many times in earlier parts of our consideration by my hon. Friend, the Minister of State. It is about placing new trust in head teachers, governors and teachers. All schools will continue to be required to establish procedures for handling complaints, and it is right that they should. Having said that we value educators, as I have previously, we have all fallen from a state of grace, and teachers are no exception. To that end, there has to be a complaints process that is robust and meets the requirements I described earlier.
It is important that we fulfil our duty—in those rare cases where schools do not fulfil their duties as regards children or act unreasonably—to protect the interests of learners and those who care for them. The Secretary of State has all the necessary powers to intervene in such circumstances, where he considers it necessary. Referring complaints that have not been resolved at a school level to the Secretary of State offers a simple system for pupils and parents faced with the actions of the thankfully small number of schools that fail to fulfil their duties with regard to individual children.
It is worth reminding members of the Committee that that is already the situation in all but the 14 local authorities. The prevalent practice, which meets the criteria I established as being the hallmarks of any good complaints procedure, is the one that most people will know and will have had dealings with. We are not alone in believing that the Secretary of State is best placed to assist parents. The Association of School and College Leaders said:
“For the overwhelming majority of parents, the arrangements in place before the LGO remit was introduced were fair, transparent and worked well. The use of the LGO represented a large sledgehammer to crack a small nut.”
It is by no means clear that the arrangements put in place by previous legislation were necessary.
I am extremely sensitive to the remarks made about children with special needs and their parents, and I will address those specifically, because they deserve a proper airing.

Pat Glass: Does the Minister not agree that the ASCL would say that, because its members are the people who would be under investigation? Being under investigation by the local government ombudsman is not an easy thing to take.

John Hayes: I suppose that, if one started from a certain perspective, one might draw that conclusion. If the hon. Lady were to begin from the perspective that it would be an unusual, exceptional and extremely rare circumstance in which a school did not fulfil its duty, she would be rather more optimistic than she seems to be. I do not want to paint her as a pessimist; I think Churchill said
“A pessimist sees the difficulty in every opportunity”.
This opportunity is to recast the way that we perceive the role of the people she described.
The other point is about value for money. As I said, I am not an accountant, so I am not preoccupied with counting pennies, any more than the shadow Ministers are, but it is about value for money. There are real question marks about whether the involvement of the local government ombudsman would deliver significant value for money, and whether it could stand up to that proper scrutiny, which we would wish to exercise, in terms of the expenditure of public money. Removing the duty on LGOs to investigate complaints will lead to significant savings. The Department allocated £2.071 million for the service in 2010-11, including for the set-up. I know, as the hon. Member for Cardiff West said, that the set-up was part of that expenditure.

Kevin Brennan: What proportion of that was set-up costs?

John Hayes: As the hon. Gentleman will be aware, the Department has provided a little less than £1 million in the next financial year. There were substantial set-up costs, and I intended to mention that, because he made that point, which was a reasonable one. However, even without the set-up costs, substantial sums are involved, which could support a range of other services. However, I do not want to belittle the efforts of the ombudsman service in undertaking its duties. We are well aware that many of those who have encountered the organisation while it has investigated school complaints have been impressed by its efforts. Indeed, the hon. Member for North West Durham made the point that the investigations are rigorous and testing, but the LGOs are well respected because of their thoroughness. That was a well made argument.
However, in these difficult times, the sums involved could be better spent. The sledgehammer and nut metaphor is well argued given the complexity of the structure and the evidence that the system very largely worked effectively until now. In that context, it is also clear that the take-up of the service has been significantly less than had been expected. In the period from April 2010 to March 2011, the LGOs received fewer than 100 complaints. I looked into that more closely because I thought that people would want a bit more detail, and a substantial number—not the majority, but a substantial minority—came from a single area; almost a third came from Kent.
It could be said that each of those complaints has cost the taxpayer more than £15,000 to investigate. Although I appreciate the sentiment that the decision about the termination of the service should not be taken without having established the facts, I cannot imagine turning up facts and arguments that would indicate that the situation is acceptable, given what I have already said.

Pat Glass: I am not surprised that the vast majority of complaints from parents relate to Kent. In the Lamb inquiry, eight particular areas were picked out as pilots, one of them being Kent. It was one of the authorities that I supported, and I have to say that I have rarely come across an authority that took less notice of parents, or where parents’ input was less welcome than in Kent. So it does not surprise me that that was the case.

John Hayes: I would not want to say anything particular about an authority on the basis that I would want to know a little more about the detail before I did so. What I will say, however, is that, measured by take-up and cost, it is pretty hard to make this system stand up. Those who take the counter view would have to make a rather more robust argument on those issues to legitimise it, but I want to consider special needs children because I too share the passion of the hon. Lady.

Kevin Brennan: Is the Minister saying that the Government estimate that complaints would cost £15,000 each if the complaints system were to be scaled up to the full level in the future? Is that the point he is making?

John Hayes: It is not possible to say that because, as the line of his inquiry suggests, this is a limited sample. It is based on a set of specific complaints. I simply could not say that, and I did qualify my comments, rather than give a more definitive statement. What we can say, however, is that it is pretty costly. I take a pre-Burkean view of this, that we should only mend things when they are broken—“if it ain’t broke, don’t fix it”. I think that the previous system was not broken. There is little evidence to suggest that it was failing parents or learners.

Kevin Brennan: Perhaps I could help the hon. Gentleman. The provenance of this scheme was not in the desperate desire of Ministers in the last Government to intervene in the affairs of local schools; rather, it came out of Sir Alan Steer’s review on behaviour and discipline in schools. It was his initiative and recommendation as a highly experienced and successful serving head teacher. He felt that it was using a hammer to crack a nut if the only place parents could go after a complaints procedure was to the Secretary of State.

John Hayes: That is interesting. If I start to digress, Chairman, you will criticise me, my own side will tire of me and even the hon. Gentleman, with his legendary tolerance, will become bored by me. However, I will say that the hon. Gentleman is right that when Governments introduce measures and schemes it is not because of some perverse desire to create ever more bureaucracy, even if our partisan exchanges suggest otherwise. It is often out of well meant responses to advice and suggestions from outside. The cumulative effect of those suggestions, that advice—all the kites that people want to fly—is immense. After an extended period of that kind of process we end up with the kind of byzantine system that was the hallmark of the previous regime—a kind of unhappy mix of Byzantium and Crete.

Graham Stuart: I do not see how the use of a mechanism that already existed—and on which a large sum of public money was expended to get it up and running, able to deal with these cases and allow parents to go to someone more local—creates the Kafkaesque, labyrinthine, Terry Gilliam’s “Brazil” universe which too often was delivered by Labour. On this occasion, I suggest that it is a more localist solution to use the existing mechanism to deliver a better service for local parents. What is wrong with that? Will the Minister think again?

John Hayes: I am not sure that the local government ombudsman is quite as local as the local schools. I do not want to pick apart my hon. Friend’s logic and I certainly could not match the breadth of his reading—I just aspire to it, no more. We must be certain about two things. First, we must deal with the circumstances raised by the hon. Member for North West Durham— specifically, young people with special educational needs. The local government ombudsman will continue to be able to investigate the concerns of parents of children with a statement of special educational needs who believe that their child is not receiving the provisions set out in that statement.
The hon. Lady knows that it is clarity about what is provided to meet the specific need that is critical. Getting that right is fundamental to ensuring that those people fulfil their potential. We do not always get it right, and we need a process that enables parents to check that every effort is being made to deal appropriately with their children. I want to emphasise that that will continue. However, from July 2012, parents of statemented pupils in the 14 LGO areas will direct those complaints that are not connected to the statement to the Secretary of State for consideration, as is currently the case—as I think the hon. Lady said—for other parents.
That leads to my second point, which is about the robustness of the process followed by the Secretary of State. It is absolutely right to say that we need to ensure that the Department handles complaints from both sets of parents properly.

Pat Glass: We are clearly talking about two different things. The current position, which I understand will not change—in relation to the quantification in the statement and the assessment—is that the local authority will still be subject to scrutiny by the local government ombudsman, and parents can go to a tribunal. The other situation arises once the statement has been made and the funding delegated. We found in the Lamb inquiry that the vast majority of complaints were not about the local authority, but that was the only route for parents, because they had no one else to complain to about the school, apart from the governors or the Secretary of State. In those cases, the complaints were dealt with much less robustly, and that was why the local government ombudsman was recommended.

John Hayes: Perhaps the hon. Lady misunderstood because I did not make myself clear. I do not suggest that people will have the opportunity to make such a complaint only if the local authority is failing, but that people will have that right if the provision is inadequate, in other words if the school is not providing, in line with the statemented needs, the right kind of offer to the child. Furthermore, as the hon. Lady might know, if parents believe that their child is not receiving all the support they need, they can ask a local authority to undertake a further statutory assessment. I think that the hon. Lady has mentioned that and, if the local authority failed to take appropriate action, it is that process that might ultimately end in the tribunals she described.
There are several steps along that road, however, and—in addition—the Secretary of State can direct action to be taken if a school is not fulfilling its obligations. There are several parts to the process, which will robustly ensure that provision is appropriate. I give my personal undertaking that in respect of children with special educational needs—and children more generally, but I particularly want to talk about the most vulnerable ones—we will consider robustly the matter of the Secretary of State handling complaints effectively. To that end, independent research is already reviewing complaints arising from schools, including—but not limited to—an evaluation of the complaints service provided by the local government ombudsman. The findings of that review will be published in the summer, and will be used to strengthen the complaints service in the Department.
I want to make it absolutely clear that we offer that assurance as part of the reform, and I shall just say what that is about in detail. It is about standards, the timetable, clarity and a transparent and accessible process. Setting out what schools, parents and pupils can expect from the complaints procedure in the Department is of fundamental importance, and we will ensure that that happens. With that assurance, I hope that Members will understand that our intention is to produce an accessible, user-friendly and cost-effective, but appropriately sensitive and responsive, system for dealing with complaints—because we care, of course, about those who benefit from our system of schooling, and we certainly care about the need to deal properly with complaints.

Hywel Williams: We have had a fairly substantial debate, and there are further amendments to be discussed. I am minded not to have a stand part debate on this clause.

Kevin Brennan: The debate shows how wrong the Government have got this. They assume that it has to do with a culture of complaining parents and vexatious people knocking at the school gate, abusing teachers and so on. It has nothing to do with that at all. As I pointed out during the Minister’s remarks, the reforms emerged from the work done by Sir Alan Steer on behaviour in our schools. Sir Alan felt that a piece of the puzzle was missing in terms of parents and their relationship with head teachers, governing bodies and schools.
The Chair of the Education Committee made a valid contribution to the debate. He wanted to strike out the entire clause, which unfortunately made his amendment otiose, but his remarks were nevertheless important. I thought that we would have heard from the Liberal Democrat wing of the coalition about localism, local authorities, parents’ rights, civil liberties and so on, but the Liberal Democrats seem to have gone from being the third force in this country to being a spent force. They seem to have nothing to say on those subjects, although they would have been jumping up and down before, even if only to press Ministers as the Secretary of State—sorry, the Chair of the Education Committee; he would make a good Secretary of State—has done in the course of our debate.
I think that Ministers’ mindset risks rewinding the clock back to a time when some head teachers, although by no means all, felt that their empire could never be challenged by parents. Parents were not really welcome inside school gates. What went on in schools was nothing to do with them, and if they did not like it, they could lump it or appeal to the Secretary of State. Perhaps that is a bit of a parody of the position, but it seems to inform this senseless overturning of a sensible, modest and moderate evidence-based reform made by the last Government, at the initiative not of Ministers directly but of the head teacher who considered such matters on behalf of the Government.
The Government seem to be saying that if someone has a complaint against a hospital, a local council or a Department, they can have access to an independent ombudsman, but if a parent has a complaint against their local school, they must go to the Secretary of State. If ever there were a sledgehammer to crack a nut, that is it: a huge leap from a local complaint about a school to the Secretary of State for Education, in Sanctuary Buildings, who will then presumably be presented with a submission, prepared for him by officials, in his red box, recommending how he ought to resolve a complaint at a local school in one of our constituencies.
The fact that that is impractical and not at all a sensible way to deal with complaints is what led Sir Alan Steer to recommend the reform in the first place. For a parent to have to appeal to the Secretary of State, or go to some judicial review or whatever, is too big a leap in order to draw a complaint to a sensible conclusion independently of the school.
The Minister was right when he said that the overwhelming majority of parents are happy with the existing complaints system. Of course they are, because the overwhelming majority of parents do not complain. The purpose of having an ombudsman is to protect the minority of people who may find that the system slams the door or the school gates in their face. We know from our constituency surgeries, week in and week out, how bureaucracy and government can affect people’s lives, and how they sometimes need a key to unlock that. Their complaint may not be satisfactorily resolved on their behalf, but they will have seen that their complaint has been properly considered, and looked at independently.
 Dan Rogerson  rose—
 Mr Hayes  rose—
I may have provoked the Minister and a Liberal Democrat Member from their metaphorical slumber.

Dan Rogerson: I assure the hon. Gentleman that there is no metaphorical or physical slumber going on. I understand his point about people’s interest in having someone to go to. He was confusing that with localism and devolving power earlier, and it is important to put on the record that I do not believe that any form of local commissioner would increase genuine local accountability, because they would not be elected locally and local people would not have any say in their appointment. The hon. Gentleman may be stretching things a little too far in claiming that there is a genuine local need for that.

Kevin Brennan: I do not really believe that the hon. Gentleman agrees with the clause, but what he said makes me think that perhaps he does. Perhaps I have misread his previous political philosophy, and he is finding ways of saying that he agrees with the provision. The point about the ombudsman is that they are there to protect people from maladministration at local level, and I do not think that that would be an unreasonable burden. In fact, it would enhance parents’ powers moderately and modestly at local level, instead of them having to appeal to the Secretary of State. I would have thought that the hon. Gentleman would support that. Not long ago, he definitely would have supported it.

John Hayes: I want to make a further suggestion. The hon. Gentleman talks about the majority of parents being comfortable with the system, and that they would be anyway because they were not making complaints. The issue for me is that there does not seem to have been any profound weakness in what prevailed, not just in the eyes of the majority of people who did not complain, but in the process itself and the business of complaining. I am happy to agree that in our review there should be specific consideration of the interests of special needs pupils and other vulnerable learners and their parents. That is not in my notes, but arises from our debate.

Kevin Brennan: I would expect that to happen, at the very least. However, it is not the point. The need was identified in a review by Sir Alan Steer, who told Ministers that there was a gap in the system, and suggested the best way to plug it. The whole matter was considered carefully, because no one wants to impose unnecessary burdens on schools, least of all Ministers. The system was consulted on, introduced and trialled, but the Government are now sweeping it away without giving it a chance to settle in, and the figures that the Minister gave were not an entirely accurate reflection of the true cost of the system.

Pat Glass: Does my hon. Friend agree that the Lamb inquiry, which took evidence throughout the country and had an open evidence system, saw many parents who were incredibly unhappy, which is why this was a significant part of the inquiry’s recommendations? It was very much evidence based.

Kevin Brennan: My hon. Friend brings tremendous experience and spoke extremely powerfully about that matter when she made her contribution. She said that we are fastest when chased. I know that she is a Catholic girl—I think she meant chased, rather than chaste. I think I understood her meaning when she said it, but she brings huge experience and sincerity to the issue in the way that she makes her point.
I do not want to detain the Committee for a long period of time, but I will say this—[Interruption.] If we examine the record, I have probably spoken a lot less than the Minister on this matter, if there are rumblings from the Minister’s PPS. Finally, the Minister tried to say—but then carefully rowed back—that this would be a hugely expensive complaints system, and that was not really worthy of him. He knows that the figures he was quoting include set-up costs, and that if this system were to become to universal it is highly unlikely that it would be a high-cost system, given that it would be done through an organisation that is already in place—the local government ombudsman.
As in other parts of the Bill, the Government are introducing a significant reduction in parents’ rights. We want to support and extend parents’ rights. We will therefore press the amendment to a Division.

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived.

Kevin Brennan: I beg to move amendment 171, in clause44,page39,leave out lines 2 to 8.
I have never believed that when someone says no, they mean yes, but if ever one could detect that in the voice of a human being, it might have been in that of the Chair of the Education Committee in his vote on that amendment. Before you call me out of order, Mr Williams, I will move on to amendment 171.
The Bill reinstates the Secretary of State’s role in complaints. The amendment asks the Minister why he will not reinstate the local authority’s role in hearing complaints about a school’s curriculum. Will he tell the Committee what assessment he has made of whether it would be more or less likely for a parent to lodge a complaint at a local level, or directly with the Secretary of State? Does he believe that for some people the option of complaining directly to the Secretary of State might put them off making a reasonable complaint that they would have made had they been able to do so at a local level to a local authority? If so, how does he intend to ensure that those reasonable and sensible complaints are heard?

Nick Gibb: Amendment 171 relates to a local authority’s role in considering complaints about curriculum, sex education and religious worship in the schools that they maintain. Clause 44 is intended to streamline the complaints system for parents and schools by removing the local government ombudsman’s schools complaints service that was introduced in the Apprenticeships, Skills, Children and Learning Act 2009. By removing the duty on local authorities to consider complaints on curriculum, sex education and religious worship, we are further simplifying that system. The clause will not stop local authorities from being involved in considering complaints, but it will stop them having to be involved. It is an anomaly that local authorities currently only have a role when the complaint is about the curriculum, sex education or religious worship. The hon. Gentleman’s party acknowledged this anomaly when they were in government by removing this duty from local authorities as they moved to the local government ombudsman complaints system.
Other education-related complaints about an individual child are considered by the school and then by the Secretary of State, so it is right to treat complaints about the curriculum in the same way. That will simplify the process for parents, pupils and schools, and it will allow local authorities to focus more closely on their strategic priorities. Where authorities choose to continue to offer support to schools in handling complaints, they will still be able to do so.
I hope that now I have given that explanation, the hon. Gentleman will feel able to withdraw his amendment.

Kevin Brennan: It was a probing amendment and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Kevin Brennan: I beg to move amendment 172, in clause44,page39,line10,leave out ‘omit subsections (3) and (4)’ and insert—
(i) in subsection (2) (Bodies to which section 496 applies), after “authority”, insert—
(ii) omit subsections (3) and (4).’.

Hywel Williams: With this, it will be convenient to discuss amendment 173, in clause44,page39,line12,leave out ‘omit subsections (4) and (5)’ and insert—
(i) in subsection (2) (Bodies to which section 497 applies), after “authority”, insert—
(ii) omit subsections (4) and (5).’.

Kevin Brennan: The clause does not relate to academies. Under the clause, parents of children who do not attend academies will be able to complain to the Secretary of State but parents of children who attend academies will not be able to do so. Can the Minister tell me why parents of children who attend academies will not be able to complain to the Secretary of State? Alternatively, if they will be able to complain to the Secretary of State, can the Minister tell me how impartiality will be achieved given that the Secretary of State has a strong interest, as he is a party to the establishment of the academy and could even be its funder?

Nick Gibb: As the hon. Gentleman has just explained, amendments 172 and 173 aim to bring academies within the scope of the powers conferred on the Secretary of State by sections 496 and 497 of the Education Act 1996. Those powers allow the Secretary of State to consider a complaint about a school and to issue a direction if a school is found to be in breach of its statutory duties or to have acted unreasonably.
I understand the hon. Gentleman’s concern that pupils of academies and their parents should be treated the same as pupils in maintained schools and their parents. I hope that I can reassure him that that is already the case. Like the previous Government, our policy is that academies are regulated through their funding agreements with the Secretary of State rather than through legislation. The specific obligations that are placed on academies, such as duties in relation to the curriculum or assessment, are contained in those funding agreements. Parents and others can complain to the Secretary of State about the failure of an individual academy to meet any of those obligations. If an academy is in breach of its funding agreement or has failed in respect of any of its statutory duties, the Young People’s Learning Agency would enforce an appropriate remedy for any breach. When the YPLA is abolished, any such complaints will continue to be dealt with through the Department for Education and Skills. In light of the process that I have just outlined, no additional protections will be afforded to pupils attending academies and their parents as a result of extending the scope of sections 496 and 497 of the 1996 Act.
I hope that I have reassured the hon. Gentleman that complaints about academies are already treated comprehensively, albeit under separate powers. Parents can be sure that, irrespective of whether their child is taught at an academy or in a maintained school, they have routes through which to raise their concerns and they can be sure that any complaints about academies will be investigated with the same degree of rigour as any complaints about maintained schools.
On that basis, I hope that the hon. Gentleman will withdraw his amendment.

Kevin Brennan: I note what the Minister has said and I do not intend to press my amendment to a Division. But I note in passing that when this clause is taken together with other provisions in the Bill, including the provisions about reform of admissions in clause 34 and the provisions about exclusions in clause 4 that we have already debated, it represents a pretty significant reduction in parents’ rights in the Bill. That is an important theme of the Bill that is emerging as we debate it.
Nevertheless, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 44 ordered to stand part of the Bill.

Clause 45

Kevin Brennan: I beg to move amendment 174, in clause45,page39,line33,after ‘direction’, insert ‘approved by an affirmative resolution by both Houses of Parliament,’.
This is a probing amendment. It would require an affirmative resolution before the Secretary of State can make a direction under clause 45, which will enable him to revise the whole or any part of a local authority scheme by giving a direction, and will require him to consult the relevant local authority and such other persons as he sees fit before a direction is given. Will the Minister explain the circumstances under which the Secretary of State would issue a direction to revise the whole or any part of a local authority finance scheme?
I know that the Minister has provided a note to the Committee on the clause, for which I thank him. A number of organisations have raised concerns about the clause. The NUT told us that it was
“an unnecessary and excessive centralising power by the Secretary of State over the financial arrangements of local authorities”—
another example of the centralisation to the state in the Bill. The NASUWT says:
“Local authorities’ financial plans will be determined by local needs of children and young people. If these can be over-ruled by the Secretary of State the needs of children and young people could be disregarded with the consequent disadvantage.”
What does the Minister intend to do to prevent that from happening? Will he tell the Committee what the impact of the clause will be? The clause will mean that the Secretary of State is able to completely overrule decision making on local public accountability and the ability for local authorities to make decisions in the interests of their communities. I am sure that he will also want to say a brief word about the note that he has kindly supplied to the Committee.

John Hayes: Before I deal with the amendment, which is about an affirmative resolution, and the points made by the hon. Gentleman, let me say contextually why we want to include the clause in the Bill. The clause will enable the Secretary of State to direct local authorities to make specific revisions to their schemes for financing schools, as has been said. Such schemes, which we require local authorities to have, define the financial relationship between local authorities and their maintained schools. We already specify in regulations the matters that must be dealt with by the schemes, but as things stand, they cannot be amended in a sufficiently consistent, coherent or timely way. We have, as the hon. Gentleman mentioned, issued a policy statement to the members of the Committee, which sets out information about the schemes in more detail.
I want to talk about why we are not seeking an affirmative resolution. The previous Government, as the hon. Gentleman knows, included the power to make directed revisions in the School Standards and Framework Act 1998—I think my hon. Friend the Minister of State and I served on that Bill Committee—but they decided then that such directed revision would not be subject to affirmative resolution by Parliament, and we agree with that position. Schemes are not about the formula used to fund schools. The power may not, for instance, be used to introduce a national funding formula for schools.
It would be wholly inappropriate to subject a direction to such a level of scrutiny. That was the argument used by Ministers at the time, and I do not think we challenged them, although we may have done.

Kevin Brennan: I take that point. However, is it not sometimes beneficial to have an affirmative resolution procedure? I believe that the Minister argued for that strongly in the opposite direction at the time.

John Hayes: It can be useful. I would certainly never argue that it is never desirable. To use a phrase that I am using far too often—I do not want to be repetitive—I think that in this case it is a bit like using a sledgehammer to crack a nut. Twice is acceptable, and three times would be carelessness, so I will not be using that again.
The purpose of using a direction for these matters is to give the Secretary of State flexibility and to allow him to bring in measures quickly. Again, the amendment would slow down the process. The amendment would impose the highest level of scrutiny, which is only really appropriate for more contentious or controversial matters. The previous Government subsequently repealed the directed revision power, but we are putting it back in so that schemes can be amended more simply as policies change. We would only use the power for policies that will be of particular benefit to schools by being implemented quickly or where there is a need for a nationally consistent policy position. There may also be a need to issue directed revisions that flow from other legislation, such as the proposed abolition of the General Teaching Council, and it would therefore be unnecessary to require further parliamentary approval.
We believe that there would be sufficient opportunity for detailed scrutiny because of the requirement to consult with local authorities and other such persons that the Secretary of State thinks fit, before the Secretary of State gave a direction to local authorities to revise their schemes in accordance with the wording of the direction. There are those safeguards when it comes to taking into account the views of other relevant parties. That is the appropriate level of scrutiny that is required in the circumstances.
I could go into considerable detail about examples of when this might be used. If absolutely pressed, I will, but I am hoping that I will not be so pressed. We think that these are sensible changes that will help schools to provide financial assurance without unnecessary bureaucracy and to plan their budgets sensibly. To that end, and with the absolute assurance that the directed revision would only be used where there was an absolute need to implement national policy on financial management or consistency grounds, I hope that the hon. Gentleman will withdraw his amendment.

Kevin Brennan: I do not want to use a sledgehammer to probe the Minister. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 ordered to stand part of the Bill.

Clause 46

Kevin Brennan: I beg to move amendment 175, in clause46,page40,line4,leave out ‘a significant’ and insert ‘an’.
As we understand it, the Government are doing a bit of tidying up through this clause. We tabled the amendment to probe the Government, perhaps with a sharper and more forensic instrument than a sledgehammer, to find out what they mean by “a significant extent” and to ask the Government how “a significant extent” will be measured in each case. The clause is about who should pay redundancy costs when a member of the school staff is made redundant and who provides community education and community services—not the education of pupils on roll. The amendment requires that the redundancy costs should not to “a significant extent” reduce the education provision to children on roll.

John Hayes: As the hon. Gentleman said, the amendment would mean that schools could not use their delegated budget to fund the termination of employment costs relating to community, staff and schools if the governing body considered that that would result in interference, however minor, with the performance of any duties imposed under the Education Acts.
We take the view that schools should be able to fund redundancy costs from their delegated budgets. From April, they will be able to do so for all other expenditure relating to community facilities—or extended services as those are often called. There is a consistency about what we are doing in the Bill in respect of the use of moneys. It would be inappropriate and inconsistent with existing legislation, which was brought in by the previous Government—my hon. Friend the Minister of State and I were on the Committee that considered that legislation—to place such tight restrictions on this one type of expenditure. As any expenditure on staff employed for community purposes will necessarily take away some funds that could otherwise be spent elsewhere, and therefore be likely to have some effect on duties imposed on governing bodies by the Education Acts, we feel that we need to keep in the word “significant” to make the clause workable in practice.
The amendment would mean that, in practice, there would be few occasions when the cost could be charged to the delegated budget, even if a school had large balances. It would therefore work against the intention of the clause, which makes a technical change; it makes funding of the costs consistent with what is allowed for all other expenditure on communities facilities as a result of amendments made to the Education Act 2002 by the Children, Schools and Families Act 2010. In a sense, and without wishing to embarrass the Opposition, we are making technical changes to bring the Bill into line with legislation inspired by the previous Government.
I remind the Committee that the wording of the clause is consistent with section 28 of the Education Act 2002, which enables schools to provide community facilities or extended services. Under that section, governing bodies can provide community services only
“if and to the extent that they are satisfied that anything which they propose to do will not to a significant extent interfere with the performance of any duty imposed on them…by the Education Acts.”
We believe that it is right to repeat the existing legislation’s wording in the clause.
By giving schools greater freedom and flexibility, yet remaining consistent with existing legislation, we believe that we have constructed an appropriate balance. The amendment would unbalance the legislation by introducing a potential inconsistency with previous legislation. I am certain that that is not the intention. On that basis, I ask the hon. Gentleman to withdraw the amendment.

Kevin Brennan: I thank the Minister for that detailed response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 ordered to stand part of the Bill.

Clause 47

Kevin Brennan: I beg to move amendment 176, in clause47,page40,line10,leave out subsection (2).

Hywel Williams: With this it will be convenient to discuss amendment 178, in clause47,page40,line11,after ‘to’, insert ‘the marginal cost of’.

Kevin Brennan: I intend to make a reasonably broad contribution, Mr Williams, but within scope; as a result, we may not need to debate clause stand part, although that is a matter for you.
There is some concern out there about the Government’s intentions, and that it might be their desire to introduce what might be called the easyJet model of education. People would get the bare essentials when they checked in. Actually, if it was easyJet, they would probably have to pay. When they signed up for the journey, they would get the bare essentials, but would have to pay for a lot of optional extras, and it might not be clear at the outset exactly what the costs would be.
We want to probe the Government about their intentions, and to see whether the purpose of clause 47 is to extend the ability of schools to charge for provisions that are in keeping with the objective of section 17 of the Childcare Act 2006, or whether it is a means of squeezing more cash from hard-working parents. For example, would Ministers allow charges to be made for reception class education? Summer-born children can be at school full-time for a whole year before reaching statutory school age. It will be as well to get all these things on the record. Do Ministers intend charging the parents of such children for full-time attendance during reception year? Another example is whether children from disadvantaged families should have access to that provision without charge and what arrangements will be made in respect of that.
There has always been a problem for two parents who work full-time using the free entitlement for a three-year-old child at a maintained school. They would have to employ someone, perhaps a childminder, to take the child to school and to pick him or her up after the three hours, when in many respects it would be preferable for the parents to take their children to school in the morning and pick them up at the end of the working day, as happens with many day care centres.
Teaching time in a nursery class is about 25 hours a week; if a child was to stay beyond the 15 hours of free entitlement, we recognise that it would be hard to provide child care during the 10 hours when other children were provided with education. We want the Minister to clarify whether that is the purpose of being able to charge for the cost of directly employed, qualified teachers. The Daycare Trust told us that local authorities should not use the proposed change in the law
“as an excuse to cut back funded provision to 15 hours if they are currently offering more - they can still choose to do that and there are good reasons why they may wish to offer longer hours to meet local need, reduce child poverty etc. Unfortunately the cuts to funding make this more likely. However if the demand is still there then parents should have the option to pay for additional hours rather than it disappearing altogether.”
What are the Minister’s views about the effect on the broader local market in early education and child care that, if implemented, the clause might promote? Would it make education and child care in a maintained school more attractive than in the private and voluntary sector? What is the Department’s view? The NUT said:
“The proposal may have a destabilising effect on the local ‘market’ for childcare. Whilst maintained provision would typically be more expensive than other types of provider, because of the higher staff and, in many cases, premises costs, the quality of maintained provision, coupled with its link to primary schools, may be sufficient incentive for some wealthy parents to use it as their main or only provision. In poorer areas, however, where cost is more of an important factor, maintained provision would be unlikely to be able to compete with the cheaper on-costs of PVI providers.”
The main aim in tabling the amendments is to get assurances from Ministers about the protection of additional free hours for disadvantaged children, and to ask them to set out safeguards so that additional hours for vulnerable children, as currently provided by some local authorities, will not be curtailed—under this clause, local authorities can charge—and to explore how Ministers expect the measure to affect the broader local market in early education and child care. Amendments 176 and 178 address the new charging provision that applies to all areas where schools can make charges for “optional extras”, namely the charge for buildings and accommodation. That was probably not included previously, as the majority of the costs for buildings and accommodation have to be met irrespective of whether an optional extra is provided. Whether the costs are business rates, most maintenance, refuse disposal and so on, they have to be paid irrespective of the building’s use for an optional extra activity. Of course, heating and lighting bills may still have to be paid.
If the charge is to be made for buildings and accommodation, surely it should be a proportionate cost, with the activity cross-subsidising school curriculum activities. Or should it be only the marginal costs—the additional cost of allowing the activity to occur? There is a considerable amount of concern and scepticism about the Government’s intentions. This is an opportunity for the Minister to put on record what is intended by the measure, and that it is not a way of squeezing more money out of already hard-pressed and hard-working parents by charging for things that should be absorbed into the general costs. Will the Minister respond to amendments 176 and 178?

Nick Gibb: I am grateful to the hon. Gentleman for tabling the amendments. I understand the concerns that he has aired. He enables me to clarify the effect of clause 47. I am sure that will reassure him about all the issues that he has raised.
The regime enabling schools to charge for a limited number of activities has been in place for some time. Where schools are permitted to charge for certain items under the Education Act 1996, the Act refers to them as “optional extras”. The 1996 Act defines the list of optional extras for which schools can charge. It includes some extra educational activities provided outside school hours, some music tuition, entry of pupils in certain public exams, some transport, and board and lodging on residential trips. The Bill does not expand the definition of an optional extra; the definition in the Education Act 1996 remains.
Section 456 of the 1996 Act sets out what costs can be included when a school is calculating charges. Subsection (4) explains that the cost of provision of an optional extra
“includes costs, or an appropriate proportion of the costs”
arising from the list of items. The list includes:
“materials, books, instruments or other equipment…the provision of non-teaching staff”
and
“teaching staff engaged under contracts of services”.
Through subsection (2) of clause 47 we are taking the opportunity to clarify a point that is not altogether clear. Subsection (2) makes a simple technical change that puts beyond doubt the fact that costs for things such as heating and lighting can be included in the charges for all optional extras. I believe it is only fair that schools offering optional extras should be able to include in their charges the costs relating to doing so. It is natural, therefore, that those should include building-related costs such as heating and lighting.

Kevin Brennan: Would it be allowable under the clause for a school to calculate the opportunity cost—the Minister is an economist so he understands what I mean by that—of renting a room to some other body and including that as part of the charge for the optional extra, given that the opportunity cost would obviously represent the true cost of the room being made available for that use rather than some other use?

Nick Gibb: No. It has to be costs incurred, and it has to be attributable to the optional extra.
The main change we are making through clauses 47(3) and 47(4)—they are the subject of the next group of amendments, but I will explain the reason for the change now—is that, for early years provision only, we are allowing attributable teaching costs to be charged for. We are making that change to support the sustainability of high-quality school early education provision. We also want to avoid creating a perverse incentive for schools to engage teaching staff for additional early years provision under contracts for services so that those costs can be charged for, rather than using existing permanent teaching staff for that additional provision.
Amendment 178 seeks to restrict the costs of buildings and accommodation, which can be included, to the marginal costs. Although it is well intentioned, I do not believe that it would be helpful for schools. Local authorities have arrangements for calculating such costs, and they will have been in place under successive Governments. The previous Government revised the guidance on charging for school activity in January 2009.
I am surprised that the hon. Gentleman moved the amendment, because I would have thought it was more in line for the hon. Member for Hartlepool to get to grips with the definition of marginal costs. The technical meaning of marginal cost is extra cost as a result of producing one extra unit. I see his memory is flooding back as he remembers the definition from his accountancy exams, so I will not pursue the issue.
I can reassure the hon. Member for Cardiff West about the issue that he raised right at the beginning of his comments, which concerned charging for reception provision. I make it absolutely clear that reception provision is free, full-time provision in schools and it will remain so. In freeing schools to be able to charge for early years provision, regulations will make it clear that reception provision remains free. That will be the case whatever the age of the child in reception, including children who start reception before the age of five.
The hon. Gentleman asked what the effect would be on the market. The intention is to create a level playing field between the maintained sector and the PVI sector. I hope that has answered his questions. I will sit down now, but if he has further questions I will try to answer them.

Kevin Brennan: I am surprised by what the Minister has just said about marginal costs, given his earlier lionisation of his economics teacher when he was a school pupil, and his knowledge that I was head of economics in a comprehensive school and taught A-level economics for many years. He will be aware, having sat the exam himself—he has not yet told us what grade he got—that marginal cost is a central concept in micro-economics. It is one with which I am, therefore, very familiar and have explained to many a teenager, with varying success, over a number of years.
Returning to the amendments, I think I am reassured by what the Minister has had to say. I want to think carefully about what he has said, however, and to have a close look at it between now and Report. Although I will not press the amendment to a vote at this stage, I want to reserve the right to return to the question of charging if we have concerns on Report. As the Minister knows, there are concerns out there about it, so I want to be absolutely sure that we nail down the idea that this may be—to mix metaphors—a Trojan horse for an easyJet approach to charging in our schools. Work that one out. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Hywel Williams: We may be sitting for some time, although I cannot foresee that, of course, so it would be in order for us to have a suspension for half an hour. We will return by 3.30 pm.

Sitting suspended.

On resuming—

Kevin Brennan: I beg to move amendment 177, in clause47,page40,line14,leave out subsection (3) and (4).

Hywel Williams: With this it will be convenient to discuss the following: 179, in clause47,page40,line18,after second ‘the’, insert ‘marginal’.
Amendment 181, in clause47,page40,line20,at end insert—
‘(6B) Notwithstanding subsection (6A), no charge may be made in any circumstances for early years provision if the pupil’s family is eligible for free early years provision for two year olds under regulations made under section 7 of the Childcare Act 2006.’.

Kevin Brennan: Croeso ’nôl, Mr Williams. I hope you enjoyed your soup in the Tea Room; it looked very appetising. The Chairman must feed during the course of our deliberations, and you look suitably restored after our brief intermission.
We now turn to our second group of amendments to clause 47. Proposed new subsection 6A to the Education Act 1996 allows for charging for the cost of qualified teacher provision when the teacher is a member of a school’s permanent staff, which was not permitted previously. The drafters of section 17 of the Childcare Act 2006 presumably believed that its purpose was to charge for child care costs, rather than the teaching costs of someone who was already on the school staff. Will the Minister explain the purpose of new subsection 6A in that regard?
Following on from that, how much should be charged for a pupil who is being educated for 10 hours a week but who already receives the 15 free entitlement hours? Should the cost be related to the marginal costs of the teacher who is already employed by the school, or should they be decided by some other means whereby the school may be able to profit from the child’s staying in the school for the additional 10 hours a week? Will the Minister clarify his views on that?
Amendment 179 asks that marginal costs be charged, and we would like the Minister to respond to that. Amendment 181 provides for the remission of charges for children from disadvantaged families. Will he offer an assurance that children from disadvantaged families will not be affected by the charges?

Nick Gibb: As discussed, clause 47 does two things. It allows schools to introduce a share of building and accommodation costs in charges for any optional extras, and it modifies how schools will be able to calculate the costs of providing additional early education. It is to that second part that we now turn. The modification in question is to allow schools to include the costs of an employed teacher’s time, but only where the optional extra is early years education.
Accepting amendment 177 would mean that schools would not be able to reflect in their charges for additional early education the costs of an employed teacher’s time, which is a substantial overhead if schools are to recover the full costs of offering that additional provision. Many schools offer an exemplary standard of early education and should be able to use existing staff for that provision. Allowing schools to charge for additional early education, but preventing them from including the extra teaching costs in those charges, would undermine the effect of the legislation.
On amendment 179, the Bill is clear that charges may include only the costs attributable to the optional extra. I have already explained why I believe that the current legislative position is preferable to the idea of marginal costs proposed by the hon. Gentleman. The Bill builds on the long established position on how schools should manage their charges. It is also fair to parents and does not introduce well intentioned but unnecessary complexity.
Amendment 181 seeks to prevent schools from being able to charge for additional early years education if the child is eligible for free early years education for two-year-olds. If the amendment’s intention, which is not entirely clear, is to prevent charges from being made for free early education for disadvantaged two-year-olds, it is unnecessary. The regulations enabling schools to charge for additional early education cannot allow schools to charge for provision that must be offered free of charge as a result of the duty in section 7 of the Childcare Act 2006. The free provision for disadvantaged two-year-olds will be a statutory entitlement under section 7.
I hope that I have addressed all the hon. Gentleman’s concerns. I am sure he will come back to me if I have not. If I have covered everything, I hope that the hon. Gentleman will withdraw his amendment.

Kevin Brennan: I will withdraw the amendment, as the Minister has requested. However, as I said on the earlier group of amendments, we want to look very carefully at what the Minister has said and the position that the Department is taking so that we can ensure that we understand what its intentions are with regard to charging. We might do that at a later stage, but at this point, in the interests of progress, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 ordered to stand part of the Bill.

Clause 48 ordered to stand part of the Bill.

Schedule 11

Iain Wright: I beg to move amendment 189, page86, line39 [Schedule 11], leave out paragraph 2.

Hywel Williams: With this it will be convenient to discuss amendment 188,page87,line33 [Schedule 11], leave out paragraphs 8 and 9.

Iain Wright: I am banking on the assumption that we will not have a stand part debate on this. I will just make a few comments, if I may. As with schedule 11, clause 48, which has just been ordered to stand part of the Bill, effectively demolished the architecture put in place only a few short months ago under the auspices of the Apprenticeships, Skills, Children and Learning Act 2009. The Government have essentially rejected that settlement and propose to introduce more complexity, so that the Secretary of State will have responsibility for the new Education Funding Agency, the local authority will have what I still believe to be an overall commissioning role—we will debate that under schedule 15—and the Skills Funding Agency will also have a role.
Schedule 11 deals with changes to the duties, powers and responsibilities of sixth form colleges and FE college governing bodies, with consequential changes to the roles of local authorities, the SFA, the YPLA in its current guise and the Secretary of State.
I move on to the amendments. The Government want to give FE and sixth form colleges financial freedom. Under the Bill as it currently stands, the college governing bodies will not be required to seek the permission of the relevant authority—that would be the local authority of the sixth form college and the SFA for a general further education college—before borrowing money.
I am sure that certain members of the Committee would agree that borrowing money to pay bills, to expand or to tide over short-term debt is a skilled business that requires creativity, imagination and style if there is to be effective financial management. The amendments probe what happens when things go wrong— when that skill does not exist and the college is facing financial difficulties, if not bankruptcy. Who takes on responsibility for the college? Is the Minister going to allow colleges to go under as a result of this? What happens with academies? I may be wrong and I hope that the Minister will clarify, but I understand that the Secretary of State’s permission will be required. If that is the case, will the Minister outline, clarify and explain why the arrangements for academies will be different from those for sixth form colleges and general FE?

John Hayes: I wish to address the issues surrounding amendments 188 and 189. As the hon. Gentleman said, the amendments would leave in place the requirements for further education institutions and sixth form colleges to seek consent before borrowing money. That is quite a restrictive requirement. The amendments also relate to sixth form colleges participating in forming or investing in a company for the purpose of protecting or conducting an educational institution.
I recognise the appropriateness of the amendments and the concern of the hon. Member for Hartlepool. His anxiety is to ensure that there is proper accountability and that a robust process is in place—a context in which we might place these additional freedoms. In turn, I hope that he will respect the thrust of what the Government are trying to do with colleges: invest more capacity in colleges to make innovative decisions and create a more responsive, dynamic and innovative sector. Indeed, I pray in aid Mr Frank McLoughlin who gave evidence to the Committee and who is a distinguished principal of a successful college. He says:
“I think the college sector has been a huge success story over the last 10, 12, 15 years”.
I do not think there would be any disagreement about that in the Committee. He goes on to say:
“I think this Government have recognised that. They have also recognised that it is a very mature sector, and therefore have given it—I think correctly—the kinds of freedoms that universities have, and we really welcome that.”––[Official Report, Education Public Bill Committee, 3 March 2011; c. 102, Q1.]
Part of those freedoms is about financial management and investment. Again, the hon. Member for Hartlepool acknowledged that implicitly. I am trying to be as generous as I can in saying that that recognition about maturity, responsibility and the locked-up human capital in the FE sector was not always evident in the way the sector was managed prior to the advent of this Government.
The system that prevailed previously was too restrictive, too bureaucratic, too micro-managed and too target-driven. Part of that was about investment and money. I strongly believe that, in the college sector, responsibilities and decisions about how colleges operate and respond to the needs of the community lie firmly with the institution’s governing body and management team.
The responsibility for the financial health of institutions, both at a strategic and tactical level, should essentially lie with colleges and their governing bodies. The hon. Gentleman knows very well that governing bodies must ensure that they clearly articulate their financial strategy, have effective mechanisms in place to ensure the continuing viability of their institutions and receive clear and concise reports about their financial position from the senior management teams to allow them to exercise control. That is partly about the relationship between college senior management teams and their governors. Again, we are changing the character of that relationship. The accountability that the hon. Gentleman seeks is, at least in part—for me, it is a significant part—about the relationship between governors and managers.
If there is evidence of mismanagement, that may lead to intervention—action—being taken by the responsible body, to secure provision for students. I am anxious to assure the hon. Gentleman that, in the case of any mismanagement, we recognise that there would be an interest in protecting taxpayer investment and learner interest, as well as in the wider issues surrounding the community and, of course, college staff.

Iain Wright: I am grateful for what the Minister says about mismanagement. If I talk about the matter in the abstract, perhaps he can give us some guidance. Again, I am probing him about when he imagines there will be circumstances in which a college can be allowed to go under. I apologise but, with your permission, Mr Williams, this will be quite a long intervention.
The Minister has been talking about the governing body and the senior management team working together to identify a growth in their business. They have borrowed money to fund that expansion and they will service the debt based on those expanding student numbers. Let us say that there is a change in Government policy, where growth is restricted and the college is no longer able to fund the debt; it is under severe financial difficulty as a result of external circumstances. In such a situation, does the Minister think that that college can legitimately go under?

John Hayes: The Government have a responsibility to be clear about the circumstances in which colleges do their business. Government policy should be consistent and clear in terms of financial strategy. The hon. Gentleman is right. Colleges have a local responsibility to plan their financial affairs, but he is also right that the Government have a responsibility to ensure that how they conduct public policy does not inhibit colleges’ capacity to plan.
Let me give two examples of what I mean by that. There needs to be greater clarity about the long-term funding of further education. That has been a problem in the past. Part of the reason for that is that so much of the funding has been tied to particular Government initiatives. We have had a target-driven approach and the financial arrangements with colleges have matched that target-driven paradigm. So in changing assumptions about how we manage colleges, we will change the balance between Government and providers.
Secondly, in more general terms I hope to devolve power for all kinds of decisions to colleges and this particular provision needs to be taken in the round for those additional powers. The distortions that the hon. Gentleman describes that are potentially so damaging for colleges are in a sense a product of a system that allowed neither sufficient long-term planning nor sufficient discretion on the part of colleges to enable them to avoid those pitfalls when making their own strategies.

Iain Wright: We would share the Minister’s desire for long-term clarity for funding post-16 provision. I am not trying to make a party political point. I know that we had difficulties about learning and skills councils here, but some of the decisions from the Department for Education—on building schools for the future and the education maintenance allowance, for example—seem to show that funding streams and things on which schools and colleges can rely can be turned off very abruptly. Can the Minister give a commitment that such decisions, which show a crisis of financial management within the Department, will not happen in future?

John Hayes: I will do that. I will say to the hon. Gentleman that on my watch there will be consistent, coherent policy in respect of further education. There has been a pretty broad measure of consensus across the House. That is why I put a strategy in place. I do not want to extend the Committee beyond what is reasonable, although so far I am being incredibly reasonable.

Iain Wright: As always.

John Hayes: We need to get that on the record. The hon. Gentleman will know that what we might have done in further education and training and skills when we came into office was to allow the comprehensive spending review to define the strategy. I was determined to put together a strategy in parallel with our CSR negotiations. Of course, it was contextualised around change in financial circumstances, but rather than merely responding to those financial circumstances, I wanted us to have a set of ideas and policies based on consultation and a proper dialogue with the sector that would be consistent and coherent and would follow through over time. That is not to say that that is fixed in stone. These things are dynamic. But I am determined to take a strategic view about the future of further education and skills and to match funding to that strategic view. On that basis I am pleased to say that on my watch—I can only speak for what I do and what I am responsible for—I am prepared to give that assurance about consistency.

Iain Wright: That was an answer to a slightly different question. In terms of the decisions that have been made, where there is an immediate cancellation of quite significant programmes in which educational institutions have invested quite a lot, can the Minister give a commitment that on his watch such abrupt financial decisions, which will have an adverse impact on FE colleges, will not happen?

John Hayes: I think abrupt decisions of the kind that the hon. Gentleman describes, U-turns in policy of the type that he suggests, and deviations of the type that he infers are never evidence of good public policy. I am the personification of the implementation of good public policy, and on that basis of course I agree with his insight.
I would like to go one step further than that, because the hon. Gentleman is also right to say that colleges enjoy a relationship with the Skills Funding Agency, and the Skills Funding Agency has a responsibility to ensure that it is sensitive to the kind of changes that might result not from public policy, but from other circumstances. There might be a local circumstance that makes the life of a college more difficult than could have been reasonably anticipated by its governing body or senior management team. The Skills Funding Agency, being responsible ultimately to Ministers, has a responsibility to deal with those matters with appropriate sensitivity. That will also inform the approach that we take.
The hon. Gentleman is right that even in the regime that we planned to put in place—which is one of greater discretion, greater innovation and greater freedom, and I make no apology for that—there do need to be both protections and sensitivity to changing circumstances. To that end, he will know that the chief executive of the Skills Funding Agency has a financial memorandum with colleges, which provides appropriate non-statutory mechanisms whereby Government can be assured of sound judgment about how money is spent by colleges. That financial memorandum should and will include considerations around some of the things that the hon. Gentleman said right at the beginning of his contribution on appropriateness in respect of financial strategies and borrowing. It is important that we take the brakes off colleges, but it is equally important that we do not allow them to crash. On that basis, I hope he will withdraw the amendment.

Iain Wright: The Minister has given some degree of reassurance and has provided personal warm words with regard to this issue. He has not answered my central and direct point, which is: under his watch, would he allow colleges to go under? In terms of freedoms, colleges presumably will be able to make adverse decisions and may have to suffer the consequences. I am not suggesting that FE colleges are too big to fail, but does he consider that they are too important to fail, given the importance that he gives, quite legitimately, to skills and the raising of skills?

John Hayes: This is a good time to have this very honest discussion. The truth is that the potential price of freedom is the sort of possible failure that the hon. Gentleman describes. In a sense, the whole advent of the Learning and Skills Council, coming after incorporation —he will remember it all—was a sledgehammer to crack a nut. The hon. Gentleman will remember what happened after incorporation—there were some difficulties as colleges found their feet. The result of that was the Learning and Skills Council, which was an extraordinary organisation. It had more money and more staff than the red army—not literally, but that is certainly what it felt like. So the hon. Gentleman is right—as we extend freedoms, there is that risk.
Given that risk, two things are fundamentally important, and this is in order of priority: the interests of learners and the protection of money. People are more important than money. We will make sure that both those things are protected through the financial memorandum, through the consistency that we will adopt in respect of the policies we pursue, and through all the other appropriate mechanisms by which colleges are monitored and inspected. The hon. Gentleman will know that if a college was going badly wrong—that badly wrong—it would be an extremely insensitive system that did not identify that early and work with the college to deal with it. He is absolutely right: that does need to happen.

Iain Wright: I thank the Minister; he has helped us a lot—although I have to put on the record my sadness that he has broken his promise within a matter of minutes by using the phrase “sledgehammer to crack a nut.” If he is going to do that with regards to language, which he considers so precious, what on earth is he going to do in terms of money as well? But we shall leave that.
I do not wish to press the amendment to a Division. What the Minister said, certainly in the latter part of his contribution, was significant, and I would like to reflect on it and perhaps speak to the Association of Colleges, the Sixth Form Colleges’ Forum and others, to see where they think that leaves them. I might come back at a later stage in the Bill’s proceedings. However, given what the Minister said, and despite his broken promise, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Iain Wright: I beg to move amendment 182, in schedule 11, page87, line17, leave out paragraph 3.

Hywel Williams: With this it will be convenient to discuss amendment 183, in schedule 11, page87,line38, leave out paragraph 10.

Iain Wright: I have mentioned the Apprenticeships, Skills, Children and Learning Act 2009. After much debate, the Act placed a duty on FE and sixth-form colleges to promote the economic and social well-being of their area. The Bill repeals that.
I will refer briefly to a letter of 17 January 2011 from Lord Hill, the Under-Secretary of State with responsibility for schools, to Marion Davis, the president of the Association of Directors of Children’s Services. Lord Hill talks about performance management and other regulatory responsibilities. In the annexe he talks about the removal of the duty. He says:
“Colleges play an important role in promoting the economic and social well-being of the local area and do not need to be under a separate statutory duty to fulfil this role. We want to remove the duty to give greater freedom to colleges to decide how best to meet the needs of people who live and work in the local area, without unnecessary bureaucracy.”
A theme running throughout the Bill, although we might have a difference of opinion, has been that Ministers believe that head teachers and college principals in FE and sixth-form colleges do no wrong—at all, in any circumstance whatsoever. However, what happens if they do? What happens if an inward-looking and parochial college does not promote that wider sense of economic and social well-being? On that basis, should the existing provisions on the statute book not remain? That is the essential probing behind the amendment, and I would be grateful for a response from the Minister.

John Hayes: I remember when we debated the provision the first time around, when it was introduced into legislation, and my hon. Friend the Minister of State, Department for Education, and I did not think much of it then. Our view was that a pretty fundamental requirement of a college is to promote economic and social well-being. What kind of college would it be if it did not see that as a fundamental duty?
What about the imperfections identified by the hon. Member for Hartlepool? Earlier, it was me who said that man was fallen, and I am quite with the hon. Gentleman on that, that we are all imperfect—some more imperfect than others—and it is for the good Lord to judge and to sort out the wheat from the chaff. None the less, the hon. Gentleman surely cannot believe that there is any college in the country that does not regard its social and economic purpose as salient to its very existence. To enshrine that in legislation is to state the obvious.
That said, I will now ameliorate it, to try and find a synthesis with the hon. Gentleman. It is true that, even in such circumstances, checks and balances matter. Local authorities and other local parties can use their influence to challenge the leadership of a college. If the senior management of a college was getting things badly wrong, there is the changed relationship between governors and senior managers, which I have already mentioned and which we see as an essential component of the different freedoms we offer.
We certainly feel that the learner voice should be powerful. I was in discussion this week with the Association of Colleges about governance. If we are going to give additional freedoms, we need to look afresh at governance, including the relationship that the college enjoys with stakeholders, and I include learners in that. I know that the National Union of Students has views on that, which I greatly respect; it identifies those colleges that have got that absolutely right, and there are some that have. I want to look at ways in which we could export that best practice and build that into assumptions about governance. The hon. Gentleman is right that that has to be part of the mix. He did not say that, but he implied it.
Of course, then there is the inspection. It would be a curious sort of inspection of a college if it neglected to discover that the college had either no or little proper concern for its economic and social role and for the well-being of the community in which it sits. I make no apology for being a champion of further education, which the hon. Gentleman generously acknowledged more than once. The reason for that is in a sense at the heart of the debate. Further education colleges are rooted in their community. They are in communion with local interests and are intrinsic to the well-being of that community. To that end, to say it to them in the Bill in that prescriptive way is at best paternalistic and at worst patronising, and the hon. Gentleman is neither—he is paternalistic only in the best sense, and he is never patronising. Therefore I think that the provision in its current form in the Bill is a sprat to catch a mackerel. On that basis, I ask him to withdraw the amendment.

Iain Wright: I welcome the new metaphor—it is a good and positive step. I know that I had criticised the Schools Minister for using personal experience, if not prejudice, to shape policy, but I will demonstrate that now. I am fortunate that the FE, the school sixth form and the specialist art college for post-16 provision in my constituency are absolutely first class. They know full well that one of the best things that they can do is provide that economic and social well-being. However, the Minister travels around the county, and he knows that not everyone can be up to the standards that I see in Hartlepool. He mentioned that the amendment was prescriptive, but I would disagree with that. I think that the power included in the 2009 legislation was aspirational, and does not prescribe at all. I return to the point: what harm does it do? It does not harm, but raises the game for colleges that may not think that it is an important point.

John Hayes: There is the difference between us. The first question that—I was going to say Tories, but I must be sensitive to my coalition partners; I am always sensitive to Liberals—those of us on this side of the Committee ask is, “What good will this do?” when we consider legislation. The hon. Gentleman says, “What harm will it do?” I focus on good, and if something cannot be proven to make a difference in the interests of virtue, it should not be on the statute book. That is a difference between us.

Iain Wright: I do not think that I have provided the Minister with a complete own goal there, but I think that he is right in many respects. I think that the provision in the 2009 legislation did some good; it helped to raise colleges’ aspirations in looking further afield from within their four walls to ensure that there was economic and social well-being. Not only has it not done anything negative, but it has done positive things.
I do not wish to press the amendment to a Division because I only wanted to probe the Minister on his thoughts. I think there is a difference in philosophy on the matter, but in the interests of moving on, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Iain Wright: I beg to move amendment 184,in schedule 11, page87,line25, leave out paragraph 7.

Hywel Williams: With this it will be convenient to discuss the following: amendment 185,in schedule 11, page88, line29, leave out paragraph 13.
Amendment 186,in schedule 11, page89,line24, leave out paragraph 19.
Amendment 187,in schedule 11, page90,line13, leave out paragraph 20.

Iain Wright: I thank the Minister for providing us with note E 96, which is the Department for Business, Innovation and Skills’ position on local authority intervention. Will the Minister clarify what I think is a contradiction in paragraph 2 of the note? It says,
“The existing intervention powers reflect earlier arrangements which saw local authorities having a detailed role for planning, commissioning and funding 16-19 education. They are also bureaucratic and heavy handed, with several bodies having powers of intervention, and subject sixth form colleges to a different, more interventionist, regime than Academies.”
Have I read that correctly? Does that indicate that the Government’s position is that the existing intervention powers will be transferred, but actually they are too heavy-handed and restrictive? Is that the intention of paragraph 2, or have I interpreted that incorrectly?
There is also a contradiction between sixth-form colleges and schools. The clause and the amendments we are currently discussing with regard to sixth-form colleges remove the intervention role from local authorities, because the Government fear that they might be used. In contrast, we discussed in clause 43 how the Secretary of State acquired additional powers to ensure that local authorities used their intervention powers in respect of schools causing concern. Is there an inconsistency there? It would be good if the Minister could mop that up.
The amendments focus in several ways on the role of the local authority and the sixth-from college: opening a college, closing a college, intervening in a failing college and representation on the governing body—an old favourite of ours. I was going to say an old chestnut, perhaps I can bring in sledgehammers later. The first of those roles—which I imagine many of my colleagues will welcome—have been nationalised by allowing the proposer to make the proposal, but not the local authority. I have a direct question to the Minister: is it the Government’s intention that new sixth-form colleges should be 16 to 19 academies? The current position of the Government is uncertain. The second action can only be taken by the college or Secretary of State. Does any other person have an intervention power in a failing sixth-form college? With regard to governing bodies, if local authorities are not to be represented on sixth-form college governing bodies, who will be a member of the governing body? Given the flexibility that the 1992 legislation gives, which was subsequently amended by the 2009 legislation, will the Minister outline the correct policy position in that regard?

John Hayes: The amendments need to be debated, as so many parts of the Bill do, in the context of the wider changes we have made and continue to make in commissioning, planning and funding systems for 16 to 19 education and training. We believe the existing systems were too complex and burdensome. They created a serious danger of diverting both the energy and the resource of local authorities, schools and colleges, away from their key task of providing high-quality education. We have already made considerable changes to reduce burdensome bureaucracy on colleges and training providers. Indeed, it has become a hallmark of our approach to colleges in particular, and I am sure that goes for schools, too, but far be it from me to claim any credit for my hon. Friends’ sterling work in that field.
The context is one of a fundamental change of approach. We have installed a much simpler funding system, ensuring that funds follow student choice through the system. We have removed the need for protracted discussions between the different parties involved. That has meant we have been able to abolish the requirement for local authorities and sub-regional groups, and come together under regional planning forums. Under the system, the responsibility for making payments direct to sixth-form colleges and other providers now sits with the young people’s learning agency, along with associated financial assurance and audit functions. We have also freed up local authorities to focus on their important strategic role as champions of young people’s learning. Local authorities retain their statutory responsibility to secure education and training in their area. Statutory guidance sets out how we expect local authorities to fulfil that duty by working with partners to shape provision in their areas for identifying gaps, enabling provision and developing the market.
We are also clear that autonomous schools, academies, colleges and independent providers should be accountable for student performance and their own improvement, planning what they deliver in the context of priorities for young people in their area.
Amendments 184 and 185 respectively seek to maintain the existing statutory framework of establishment and closure for sixth-form colleges. At present, the Secretary of State can only exercise his powers to establish or dissolve a sixth-form college when the relevant local authority has made a proposal. This reflects earlier arrangements that saw local authorities performing a detailed role in the planning and commissioning of 16 to 19 education. However, it is restrictive, and creates the potential for bureaucracy and delay as there is no provision to allow direct proposals to the Secretary of State from prospective sixth-form colleges, such as groups of existing school sixth forms that wish to come together, or other colleges that are merging or restructuring.
At this point I want to say a word about the note that the hon. Gentleman raised, and in particular the point he made about the contradiction. If I may say so, it shows a certain insight to draw attention to the superficially apparent contradiction. I read the note as he was speaking and see what he means. However, I think we are really saying that the powers will be transferred to the Secretary of State, and he is very unlikely to use them. The very business of the transfer takes out the bureaucracy, heavy-handedness, and potential for confusion that is implicit in the current system. The transfer of the powers itself is what adds to the quality of what we want to do; that is the virtue of it. We are not saying that they are bureaucratic, heavy-handed, cumbersome and insensitive, but therefore the Secretary of State will use them liberally. We are saying that they will be rarely used, and I think that the hon. Gentleman appreciates that. I think it is fair to say that, by their very nature, they would be used unusually. Paragraphs 7 and 13 address these issues by enabling direct proposals from prospective providers to open sixth-form colleges, and from sixth-form colleges wishing to close their institutions.
The other aspect of the freedoms we have discussed is the desire to create a more plural system. We want to create a more permissive set of circumstances where new providers can enter the market. That is important for colleges, sixth-form colleges, and schools. It is also important for universities, if I may say so. I have colonised universities, at least for the day, as the Minister for Universities and Science, my right hon. Friend the Member for Havant is otherwise engaged. He is doing Government business, I hasten to add, but I have been speaking on that subject today, and why stop when you are on a roll?
The capacity for new providers to come into the marketplace is an important additional part of what the Government are trying to achieve as a matter of policy, and we have given licence to that in the Bill. It is another aspect of the debate that we need to have as a House, and so as a Committee. However, I accept that any such proposals must be subject to representations, and I would include representations of other interested parties, for example, other providers or local authorities. That is very much what we envisage.
In recognition of local authorities’ strategic roles as champions of young peoples’ learning, and of their statutory role in respect of economic development, which is closely linked to learning and skills, the Secretary of State may also consult local authorities before issuing any order to open or close a sixth-form college. I want to reassure the hon. Gentleman. While the Secretary of State takes additional powers in the sense that powers are transferred, this comes out of a desire to simplify the system, without neglecting the proper consideration of the representations that will be made by parties concerned with learning in a particular locality. I want to reassure him that that is central to our thinking.
Paragraph 13 enables the Secretary of State to close a college in the absence of a proposal from a third party. This provision is essential in the light of paragraph 19 of schedule 11, which transfers to the Secretary of State powers that local authorities currently have to intervene in sixth-form colleges. For example, in a string of circumstances after intervention has failed to improve a sixth-form college—that reflects back to our earlier discussion—the Secretary of State must be able to dissolve that college without such a proposal. That power is a necessary safeguard to protect students from unacceptable standards of education and training, and it reflects the commitment I made during our discussion on the previous set of amendments to protect learner interests.
Amendment 186 seeks to maintain the current local authority powers to intervene in sixth-form colleges. Let me pay tribute to the hard work, commitment and success of sixth-form colleges. They have been recognised by Ofsted as a highly performing part of the education system and the highest performing part of the education sector for 16 to 19-year-olds. In recognition of that high performance and responsibility, we have made provision in schedule 11 to grant those colleges greater freedom and to remove red tape. Again, I acknowledge the point implicit in the hon. Gentleman’s intervention that we must ensure that appropriate statutory safeguards remain in place to protect students from unacceptable standards of education or training. The Secretary of State will be able to exercise the power to intervene only in certain prescribed circumstances, for example if the college fails to provide an acceptable standard of education, training or learning. I expect the powers to be used very rarely, but the fact they exist provides the safeguard that the hon. Gentleman seeks.

Iain Wright: The Minister is being helpful in providing a greater degree of clarity on this issue. He mentioned prescribing the circumstances in which the power would be used. What is the format and medium by which that will happen? Does the Minister suggest that the Secretary of State will produce guidance and regulations on that?

John Hayes: The hon. Gentleman is right to ask that question. Guidance is essential so that colleges and other interested parties know where they stand.

Iain Wright: Regulations or guidance?

John Hayes: I can go one stage further. Guidance would be great, regulation would be super, but to put it in primary legislation would be sublime—and indeed it is. I am not surprised that the hon. Gentleman did not spot that as it is not easy in Opposition. This provision needs to be in primary legislation, as it is.

Iain Wright: Where?

John Hayes: It has come to me through inspiration. It states clearly in the details in proposed new section 56E that the section applies to sixth-form colleges if the Secretary of State is satisfied about one or more of the matters listed in subsection (2). It is immaterial whether a complaint has been made by a person, and that is in the Bill. The relevant circumstances are listed and include learner interest and standards. The hon. Gentleman has got what he wants.
Amendment 187 seeks to maintain the power of local authorities to appoint up to two members of the governing body, and the hon. Gentleman spoke about that in his earlier contribution. Colleges should be free to determine and decide for themselves who the members of their governing body should be. I imagine that the hon. Gentleman—and other members of the Committee—will have been the governor of a school, as I have been all my adult life. He will know that the relationship between the governing body and the leaders in a school is important. I am not sure that it is helped by the kind of prescription that is implicit in saying that there must be x number of local authority representatives on a college governing body. Colleges are free-standing institutions; they are as grown up as we want to be, and they deserve to be treated as such. They have always been so, but in the past sometimes they were infantilised by the way in which they were handled. We need to be more open-minded about how their governing bodies are constituted. To some degree, the current arrangements in governing bodies are a hangover from the days pre-incorporation, and we should not just cut free that history.
The hon. Gentleman linked the matter to performance, but removing the power would not change the way in which poor performance is managed. The power for local authorities to appoint members of the governing body may be used as the first action in case of concern about poor performance. In practice, that is not how the power is used. Its main use is to bring in specialist expertise to support college activity—for example, oversight of a capital project—often at the request of a governing body. Paragraph 20 does not preclude colleges’ ability to approach the relevant local authority for advice about suitable candidates and membership. It is not that the involvement would be undesirable, but that the power to make those decisions should be held locally.
We talked about community cohesion and involvement with the community. As the hon. Gentleman well knows, good colleges have powerful and positive relationships with the local public and private sectors. I would expect there to be a positive collaborative relationship between local authorities and local colleges. The Association of Colleges said in its written evidence to the Committee that it
“is pleased that Ministers have placed on a statutory footing the clear commitment they have already shown to freeing Further Education and Sixth Form Colleges from many regulatory burdens.”
Having fairly thoroughly examined the amendments, I will conclude. We believe passionately in the provision contained in schedule 11. It is essential to align the process for establishing, dissolving and intervening in sixth-form colleges with the practical changes that we have made, continue to simplify and streamline 16-to-19 education structures and systems, and ensure that providers are free from unnecessary burdens and bureaucracy to deliver the education that meet the needs of learners and employers according to local circumstances. Again, I emphasise that that does not mean, in any way, shape or form, a divorce from the local community, including local public sector bodies and local firms and businesses. However, I do not think that that requirement needs to be in the Bill. On that basis, I ask the hon. Gentleman to withdraw his amendment.

Iain Wright: I will be brief, in the interest of making progress. I do not want to press the amendments, which are probing amendments, to a vote. I am grateful for what the Minister said regarding the prescribed requirements in the extreme circumstances for intervention by the Secretary of State under clause 56. The Minister will appreciate that we are considering only clause 48 and schedule 11 at the moment; I have not read as far as clause 56, although I might have a bit of time to do that next week.
I was a bit concerned with two or three things that the Minister said. It is about the old chestnut of “may” and “must”, regarding how the Secretary of State will consult the local authority and the wider community—perhaps we will leave that for another day. We will also come, in a subsequent clause, to the question of new entrants into the 16-to-19 market. I want to focus on that quite a bit during the consideration of clause 51, and I ask the Minister whether that is the purpose behind some of the proposals in the schedule. As we heard in our evidence sessions from the Association of Colleges and other organisations, the FE sector is incredibly competitive and effective, and it is difficult to see how new entrants to the market will raise the performance quality and efficiency of the sector given where we are now. The Minister is a champion of the FE sector, which is working incredibly well. I fail to see what new entrants would provide, but that is a matter for clause 51.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Nick Gibb: I beg to move amendment 202,page89,line12 [Schedule 11], at end insert—
In section 53 (inspection of accounts), in subsection (2)—
(a) after “section 15ZA” insert “or 18A”;
(b) omit “61 or”.’.

Hywel Williams: With this it will be convenient to discuss the following: Government amendment 206.
Amendment 235, in clause63,page50,line3,leave out subsection (2).
Government amendments 200, 209 to 214 and 201.

Nick Gibb: The Government amendments are technical and relate to the consequential amendments to primary legislation required because of the abolition of the YPLA. When the Bill was published, we had not been able to include those consequential amendments, but I am pleased to say that we have now rectified that. In summary, amendments 202 and 206 will insert into schedule 11 consequential amendments to primary further education legislation.
Amendment 235, tabled by the hon. Members for Cardiff West and for Hartlepool, would prevent the Secretary of State from making orders in respect of consequential amendments to primary legislation and to secondary legislation. We agree that we no longer need the power in the Bill to make an order for primary legislation, and Government amendment 200 will remove the relevant power from clause 63(2), but we still need the power to amend secondary legislation. That is entirely proper and follows long-standing precedent, so we cannot accept amendment 235.
Amendments 209 to 214 insert consequential amendments into schedule 15. Finally, because of the removal of clause 63(2)(a) by amendment 200, amendment 201 will make a corresponding amendment whereby a reference to clause 63(2) is removed from clause 74(4).
I assure hon. Members that the Government amendments are technical and entirely consequential on the abolition of the YPLA. I hope on that basis that the Committee will accept the amendments.

Iain Wright: I am always suspicious when a Minister—including myself when I was a Minister—starts speaking to a group of amendments by saying, “These are technical amendments.” I usually think, “What on earth is the Minister trying to hide?” However, given the Minister before us, I fully accept what he has said and the context he has described. The Government amendments will do something very similar to what we wanted to achieve with amendment 235. On that basis, I see it as a victory for the Opposition, and I hope the Minister is gracious enough to allow me that small victory. We do not have a problem with anything he has said.

Amendment 202 agreed to.

John Hayes: I beg to move amendment 203,page89,line15 [Schedule 11], leave out from ‘for’ to end of line and insert ‘the words from “Chief Executive of Skills Funding” to “Executive”)” substitute “Secretary of State”.’.

Hywel Williams: With this it will be convenient to discuss Government amendments 204 and 205, 207 and 208.

John Hayes: I will not say these are technical amendments, because I know now that will arouse all kinds of unfounded suspicion in the hon. Member for Hartlepool. I will omit those words from anything I say at the outset.
Amendments 203 and 204 transfer to the Secretary of State powers currently held by the chief executive of the Skills Funding Agency to intervene in the affairs of further education colleges in certain prescribed circumstances. Our commitment to rationalise and streamline public sector bodies, reduce bureaucracy and free up the further education sector means that the role of the chief executive is changing. He does not have a planning function and his core role is to allocate funds to colleges and training providers, with individual further education colleges themselves determining the appropriate learning offer and taking responsibility for performance improvements.
That builds on the narrative, which I think is emerging both in this Committee and more broadly across Government, on the responsibility that we believe practitioners in schools and college deserve to be given. I regard it as the untapped human capital in further education colleges, too long constrained by the almost obsessive interest in micro-management that prevailed before our glorious arrival in power.
The truth is that in the relationship between the SFA and colleges, colleges must be clear, as the hon. Gentleman said earlier, about financial affairs: what money they will get, why they will get it and when and in what volume it will arrive. Decisions about how to use that money must be a response to economic need, to business skills requirements and to learner and community interests. That changing relationship between the SFA and colleges is the reason for the changes in this part of the Bill.
It is necessary, however, to ensure that as a measure of last resort, appropriate statutory safeguards remain. The reason—we have made this point before, but it deserves amplification—is to protect learner interests, as well as taxpayer funds. Colleges are the recipients of considerable amounts of taxpayer money and it is right that we should ensure that that money is properly spent, notwithstanding our faith in colleges. I sympathised with the hon. Gentleman when he said how well and how much they do and how much difference it makes to so many.
It is our intention, by transferring powers of intervention to the Secretary of State, to create a mechanism by which he will be able to intervene, as a last resort, in prescribed circumstances. For example, if he considers that an institution is performing significantly less well than might reasonably be expected or is failing or likely to fail to deliver an acceptable standard of education or training, he might choose to intervene. The prescribed circumstances also include where the institution’s affairs have been or are being mismanaged, or where the governing body is failing to discharge its duties or acting unreasonably in the exercise of its powers. Those are exactly the kinds of thing that we have been debating under the past several clauses, and on which the hon. Gentleman rightly presses us in scrutinising the Bill.

Iain Wright: What does the Minister think would be a good test of reasonableness? Would it also include the concept of coasting colleges—relatively successful colleges that are expected to and could do much better? Does he recognise that concept?

John Hayes: I do. It is interesting that the hon. Gentleman should raise it. My hon. Friend and I have discussed it many times in opposition and in government. Attention is often drawn to examples of schools, colleges or other institutions that are doing exceptionally poorly, but we have profound concerns about those schools, colleges and others that are simply not fulfilling their potential or doing as well as they might be expected to do by any measure. The victims of that are the learners. That is not acceptable, and we both take a strong view of it.
We must address coasting colleges or schools, but I am not sure that intervention powers are the best mechanisms for doing so. Intervention powers are, by their very nature, best used only in extremis—as I said, in circumstances where there is a real risk to learners or to public funds. However, there are perfectly reasonable questions to be asked about what measures we should take to deal with the circumstances described by the hon. Gentleman. I think such measures are about sharing good practice, identifying proper leadership and management and working to develop better qualities in those terms. They are also about appropriate inspection and using inspection to inform progress—that needs to happen. They also relate to governance. The discussions that I am having with the Association of Colleges, the 157 Group, the National Union of Students, which I mentioned earlier, and others were about what we can do as a Government to catalyse or stimulate that new emphasis on excellence, which is a necessary component of the emphasis that we want to place on further education and of the freedom that we want to give providers.
The hon. Gentleman is right to focus on standards. Standards in colleges are just as important as standards in schools, for colleges are pivotal to our education system, but intervention powers—powers of last resort, as it were—are not the best way to achieve those standards. Using those powers would almost be like using a spade to kill a gnat and neither of us want to do that.
If the relevant circumstances prevail and the Secretary of State deems it appropriate and necessary to secure the effective delivery of a publicly funded service, the Secretary of State will be able to take certain prescribed actions, namely: removing any or all members of the governing body of the FE college; appointing new members to fill vacancies; and giving directions to the governing body on the exercise of its powers and the performance of its duties.
Amendment 205 will repeal the requirement for the chief executive of the Skills Funding Agency to prepare and keep under review a statement of its policy in respect of the powers to intervene in the affairs of FE institutions. The power of the Secretary of State is to issue directions to the chief executive of the Skills Funding Agency when exercising intervention powers. Those powers would no longer be necessary. The amendment mirrors the approach taken by the Department for Education in respect of sixth-form colleges, where it is proposed through the Bill to transfer the equivalent intervention powers from the local authority to the Secretary of State.
Finally, amendments 207 and 208 make minor consequential amendments relating to the earlier amendments 203, 204 and 205, as proposed.
I know that the hon. Gentleman has no intention, either in what he advocates or what he has tabled, to use an excessive degree of intervention—one might say to use a musket to kill a butterfly. On that basis, I hope that he will withdraw the amendments.

Iain Wright: I was not going to speak to the Government amendments. I am more than happy to withdraw those amendments if the Minister wants me to. [ Laughter. ]

John Hayes: That is the trouble with oratory, Mr Chairman. One can become intoxicated by the exuberance of one’s own verbosity—as Gladstone was, by the way, but Disraeli never was, of course.
On that basis, I am happy to urge the Committee to accept the Government amendments.

Amendment 203 agreed to.

Amendments made: 204,page89 [Schedule 11], leave out lines 16 to 18 and insert—
‘( ) In subsection (3), for “Chief Executive” substitute “Secretary of State”.
( ) Omit subsection (4).
( ) In subsections (5) and (6), for “Chief Executive”, wherever occurring, substitute “Secretary of State”.
( ) For subsection (9) substitute—
“(9) The Secretary of State may not give a direction to a governing body under subsection (6)(c) which relates to the dismissal of a member of staff.”’.
Amendment 205,page89,line21 [Schedule 11], at end insert—
Section 56B (intervention policy: England) is repealed.
Section 56C (directions) is repealed.’.
Amendment 206,page90 [Schedule 11], leave out lines 21 and 22 and insert—
(1) Section 82 (joint exercise of functions) is amended as follows.
(2) For subsection (1) substitute—
(1) A relevant authority may exercise any of its functions jointly with—
(a) another relevant authority, or
(b) the Secretary of State, to the extent that the Secretary of State is discharging functions under section 14 of the Education Act 2002,
where the condition in subsection (1B) is met.
(1A) The Secretary of State may exercise functions under section 14 of the Education Act 2002 jointly with a relevant authority where the condition in subsection (1B) is met.
(1B) The condition is that it appears to the persons who are to exercise functions jointly that to do so—
(a) will be more efficient, or
(b) will enable them more effectively to discharge any of their functions.”
(3) In subsection (2), for the words from the beginning to “provision” substitute “A relevant authority must, if directed to do so by the Secretary of State, make provision jointly with another relevant authority or with the Secretary of State”.
(4) In subsection (3)(a) omit “the YPLA,”.’.
Amendment 207,page91,line2 [Schedule 11], leave out ‘7(7), 8’ and insert ‘7(2), (3), (4)(b), (5)(a), (6) and (7), 8 to’.
Amendment 208,page91,line4 [Schedule 11], leave out ‘paragraph’ and insert ‘paragraphs 7 and’.—(Mr Gibb.)

Schedule 11, as amended, agreed to.

Clause 49

Kevin Brennan: I beg to move amendment 190, in clause49,page40,line26,at beginning insert ‘Subject to subsection (5)’.

Hywel Williams: With this it will be convenient to discuss amendment 191, in clause49,page40,line36,at end insert—
‘(5) Notwithstanding the amendments made by subsections (1) to (4), a local authority may elect to categorise a Pupil Referral Unit as a Short Stay School.’.

Kevin Brennan: Perhaps appropriately in the week after the Budget, the Minister referred to Gladstone and Disraeli. Gladstone delivered the longest Budget on record, and Disraeli delivered the shortest on record. I think the Minister is more of a Gladstonian Liberal than a Disraelian Tory.
What’s in a name? If the Minister were delivering this speech, he would probably go on to say, as Shakespeare said, that a rose by
“any other name would smell as sweet”.
I shall not do that, because I do not want to delay the Committee with my learned literary knowledge, although the Minister has been kind enough to refer to it on other occasions.
The commencement order to change the name of pupil referral units to short-stay schools was revoked before its implementation date of 1 September 2010, and the purpose of the amendment is to probe why the change of name will not happen. Amendments 190 and 191 would allow the local authority to categorise a pupil referral unit as a short-stay school. The purpose and implications of the clause are not clear.
The Committee will be interested in the points raised by Jacky Mackenzie on behalf of the executive committee of the National Organisation for Short Stay Schools. In a letter to the Secretary of State, she stated:
“We were, therefore, extremely surprised to find that you had made the decision to revoke the legal change of name without any consultation with PRUs about this. Given that our members and PRUs country-wide had been fully consulted about a name change this was a worrying sign and indicated a lack of appreciation of the healthy dialogue we have had with your representatives as well as an appreciation of the good and outstanding work present in PRUs.”
It is a sorry tale that the Government have decided not to consult the very organisation whose name they are changing back in the clause.
Will the Minister clarify the Government’s purpose and intention in the clause? Does he intend that those organisations should no longer be short-stay organisations for pupils? What evidence has he used, given that there was long consultation, on which to base his decision to revoke the name change? Will he outline the anticipated implications of the Government’s decision to revoke the name change, particularly with reference to the role, image and status of pupil referral units? Will he outline what role PRUs have and should play given that he has found it necessary to introduce the clause? Will he assure the Committee that the change of name will not impact negatively on the role and image of PRUs, because the consultation took place for those reasons? Will he explain what he intends the combined impact of the name change to be? We shall discuss on clause 51 the impact on PRUs with respect to academies.
The purpose of the amendment seeks to clarify why the Government decided to revoke the name change from pupil referral units to short-stay schools, and to give local authorities the power to decide whether such institutions should be called pupil referral units, or short-stay schools. I look forward to the Minister’s response.

Pat Glass: The provision may not have come into force, but it was well known and expected, and good local authorities had made plans for it. My understanding was that the purpose of the previous Government’s proposal to change the name to short-stay schools was to send a signal—we have heard a lot in this Committee about sending out signals—that children should have proper, permanent, full-time placements in schools or academies and that any placement in a PRU was temporary, short and on the way to a full-time and permanent placement in a school or an academy. As Members well know, such measures were considered because of the history of PRUs. Sir Alan Steer was absolutely right when he referred to them as a national scandal.
I remember taking over a PRU, as part of a much wider service, in an authority in which I worked. It was full of children who had been there for years and who had nowhere to move on to. I met the head teachers in the authority and we agreed to abolish the key stage 2 PRU and put that money into preventive funding. There was a mainstream school that was prepared to take on permanently excluded children on a very short-stay basis until we could find permanent provision for them.
The key stage 3 PRU became a very short-stay school. There was a 13-week programme in which children were assessed very quickly and then moved on to permanent placements. The key stage 4 PRU became part of a provision with a special school and a local college. The reason for that was that there were children who had been permanently excluded in key stage 1, in infant school, and had gone on to spend their entire career in PRUs. That was an absolute disgrace. The previous Government wanted to prevent that happening again.
PRUs around this country are full of children who have special needs, some of whom are on statements. Many of those have either a PRU named on the statement or some other provision that they have not been able to access. PRUs are full of children with mental health difficulties and massive anxieties. There are children who have been badly bullied and are placed there because there is no proper provision for them elswhere. They are full of children with autism and there are also children who are permanently excluded for serious behavioural issues. Within any PRU, there is a real conflict around the mix, which is potentially explosive. There are the incredibly emotional children and the disaffected, delinquent and criminal teenagers and that is incredibly difficult to manage.

Richard Fuller: I am listening intently to what the hon. Lady is saying. Will she expand on this idea that the name “pupil referral unit” adds to a sense of social separation and social stigma? Was that also part of the thinking of the previous Government? What was the impact on many of the schools that she has heard about?

Pat Glass: That is a helpful intervention. I cannot speak for the previous Government; I was only elected to this House in May. None the less, I think that that was very much part of their thinking. It was about separation. These children were moved and were no longer part of the mainstream provision within an authority. One of the most helpful things that I did was to sit down with head teachers and get a collective agreement that all the children belonged to all of these schools and that there was a place for every one of them within the mainstream of education in that city.
Teachers in PRUs do an incredibly good job, but the mix of children is very hard for them. The curriculum range can be huge. Teachers can be providing a curriculum for children with severe learning difficulties and for children who are academically very capable, and often gifted. I should have said earlier that there are often gifted and talented children in PRUs because the curriculum in the school that they had been in has simply not been able to cope with their level of ability.
GCSE outcomes and longer-term outcomes for children at PRUs are very poor. We have had many on the road to Damascus moments, but I remember standing in a PRU one day, looking at a photograph of children who had left a few years previously, and the head teacher came up behind me with the deputy head teacher and pointed at various children, saying, “Dead, dead, dead, in prison, in prison, in prison, dead,” then finally, “Oh, that boy got a job as a chef.” The outcomes for many such children are appalling. We can be discussing GCSEs or A-levels, but this is about keeping these children alive. Many of them are the very highest-risk individuals. We are talking about suicides, car crashes, fights and drugs overdoses. Their life expectations are very low. Everyone agrees that the best way forward is that those children need permanent placements. I do not mind whether we call them PRUs or short-stay schools. I am more interested in whether the Minister has a plan for making things better for these young people and whether PRUs will no longer be sin bins.

Nick Gibb: It is always a pleasure to follow the hon. Member for North West Durham, and she will find that everyone in the Committee shares her views. They are certainly the views of the Government. We need to improve the quality of alternative provision in this country, whether that is through a PRU or a short-stay school or any other form of alternative provision. We are taking several measures, which we announced in the White Paper, to do precisely that. We will shortly come to clauses 51 and 52, which introduce provisions that will allow good and outstanding PRUs to convert to academies and for alternative provision for free schools.
We are also legislating to give PRUs similar freedoms to community schools. Management committees will be given a devolved budget and responsibility for staffing, because most people do not realise that PRUs are actually not governed in the same way. We had a big discussion earlier about schools governors, but PRUs do not have governors. They have a management committee that is directly appointed by the local authority. We will improve the accountability of alternative provision by establishing a professional body and a quality mark for voluntary and private sector providers of alternative provision. As hon. Members know, we will trial a system of schools retaining responsibility for pupils whom they may exclude, so they will have an interest in ensuring that the provision that they go on to is of a high quality. We are as concerned as the hon. Lady is about quality, and we are determined to do a lot about it.
I fully support the intention of amendments 190 and 191, which is to allow an institution to call itself by whatever name it likes. The amendments are not necessary to achieve that. Local authorities can choose to name the individual units that they are responsible for, and we have no intention of removing that power. I am sure that local authorities will continue to adopt suitable names for individual units that reflect what each of them does. Clause 49 will not prevent a unit from using the term “short-stay school” in its name, if that is appropriate. A PRU that is primarily for pupils with short-term medical needs, for example, may want to use the term in its name.
Clause 49 is about the legal name of such schools. It would not be sensible to have two terms for the same type of school. The clause repeals the change to short-stay school, because we do not want to send the signal to local authorities that such institutions are places in which pupils should only ever be educated for short periods. Often pupils will return quickly to mainstream school, but they should not be forced to if it is not the most appropriate thing.

Pat Glass: I accept the premise behind what the Minister is saying, but my experience was that those children stayed there if it was a PRU. If the highly experienced staff in a PRU consider that a child should not return to a mainstream school, a PRU is not the right place for them. We need to move them on to a special school if that is right. My concern is that those children will stay there for the rest of their educational career.

Nick Gibb: This will depend on the quality of the PRU. I have had the privilege of visiting one or two high-quality PRUs since May, and the children in those units have flourished. I met some alumni who came back, because I was visiting, to tell us what they had achieved from being at that unit. There are examples of good practice around the country. I am not saying that it is consistent, and I think that the hon. Lady makes a valuable point when she cites Alan Steer on this. That is the point. We do not want to send a message that alternative provision should always be short stay. It might be short stay in the majority of cases, but there should be a place in the portfolio of alternative provision around the country in which children stay a little longer, perhaps a year or more, if that is necessary for them. It should be up to the professionals in those units or that alternative provision to make those decisions. Some children will never be able to go back to large mainstream schools of 1,000 to 1,500 pupils. They might find it too daunting and would prefer to be in a smaller unit, and they might not have any special needs, other than needing to be in a smaller environment. We have to allow a thousand flowers to bloom, and that is the purpose of the clause.
The issue is only about the legal name. PRUs can continue to be called PRUs, and they can continue to be called short-stay schools. We do not have a strong opinion about that. People might question, therefore, what we are doing, because we could leave the provision on the statute book and concentrate on other things. We have to remove it, however, because we cannot leave provisions on the statute book that we have no intention of ever commencing.
The hon. Member for Cardiff West asked about consultation. Of course we value stakeholder opinion, and officials had discussions with PRU staff and heads, local authorities and voluntary and private sector providers, through an online forum and in face-to-face meetings, about how we could improve alternative provision, rather than getting bogged down in the legal name. Those discussions were valuable, and they have helped us to shape policies. The decision not to change the name of the units was announced in a parliamentary answer in July 2010, and the consultation started at about the same time. I am not aware of any specific complaints about our decision on the name change during those discussions, and we know that some of the people involved in the consultation were aware of the announcement that we made last July.
On the grounds that we are simply trying to create flexibility and to remove a provision from the statute book that we do not intend to commence, I hope that the hon. Gentleman will withdraw his amendment.

Kevin Brennan: In the interests of disposing of the provision before possible Divisions in the House, I will not go on too long or press the amendment to a vote. Suffice it to say that there may well be room for further debate on the matter, and there might be a particular interest in another place.
Even though the Minister has said that he was not aware of any concern, I outlined the concern that was expressed by the executive committee of the National Organisation for Short Stay Schools and PRUs in Wales about the lack of consultation on the name change. The Minister often talks about signals, and our concern is that the Government might be sending out the wrong signal by getting rid of the term “short-stay schools,” and might be giving the impression that some of the old bad practices of children being parked in places for long periods, without properly being watched over, might be allowed to return. The Minister said that that is not the Government’s intention, and I support him in his desire to develop appropriate models to help children’s particular needs. When I was Minister with responsibility for PRUs, I was concerned to improve governance and give alternatives, so I support the current Minister in his mission, but there is a concern out there that the wrong message might be being given.
I therefore urge the Minister to make it absolutely clear that the focus is very much on looking after the needs of the children and on ensuring that they can, wherever possible, return to a mainstream school or, if not, into mainstream options, and have a tailored education for their needs, whatever they might be. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 ordered to stand part of the Bill.

Clause 50

Question proposed, That the clause stand part of the Bill.

Kevin Brennan: I am not sure whether we will be interrupted now or later by possible Divisions in the House, but as we are moving on to discuss academies I want to say at the outset that my right hon. Friend the shadow Secretary of State recently spoke to the Association of School and College Leaders conference on that subject. He said:
“Contrary to excitable claims from the Free School lobby, I would not seek to close successful Free Schools or reverse academy status for ideological reasons.”
Now that I have put that clearly on the record, we can dispose of the matter and perhaps go on to scrutinise the Government’s intentions for academies.
We have not tabled any amendments—

Sitting suspended for a Division in the House.

On resuming—

Kevin Brennan: Before the Division, I explained that we had not tabled amendments to clause 50, but we have a few questions. Of course, we are full of admiration for parliamentary counsel, but we did wonder why the clause repeals section 1(6) of the Academies Act 2010 as well as clause 51(3). Specialisms were developed under John Major in the 1992 to 1997 Conservative Administration and taken forward under the Labour Government. I wonder whether the repeal of clause 50 marks the end of specialisms as far as the Government are concerned. What is the Government’s policy on specialisms? Is there a cost implication to abandoning specialisms? Will there be a need for schools to rename themselves once they are no longer regarded as specialist establishments?
Arguably, the end came with the public expenditure announcement last October when the money for carrying out the school assessment was removed from the specialist schools and academy trusts, and the specialist schools grant stopped. Does the abandoning of specialisms undermine the previous provision that was in place, which allowed schools to select on the grounds of aptitude up to 10% of pupils for subjects such as modern foreign languages, the performing arts, visual arts, physical education or sport, design and technology, and information technology? Section 102 of the 1998 Act permitted selection on aptitude for particular subjects. Will the Minister clarify why under clause 50 this is being done and what are the Government’s intentions and views around specialisms?

Nick Gibb: Clause 50 removes section 1(6)(b) of the Academies Act 2010. Its effect is to remove the requirement on academies to have a specialism in their curriculum. The Government’s policy is to remove bureaucracy from the system and to give schools greater freedom to trust in professionals. As part of that policy, we have ended the specialist schools programme for maintained schools, which can choose whether to have a specialism in the light of their particular circumstances. The associated funding for the specialist schools programme has been mainstreamed into the general schools budget so that schools can decide how best to use the funding available to them to raise standards, whether through a specialism or not.
Clause 50 gives academies the same freedom by amending the statutory characteristics of academies so that opting for a specialism will in future be voluntary. We firmly believe that within the context of a broad and balanced curriculum, academies should be free to teach a curriculum that they believe will best raise standards. That may or may not include a specialism.
The hon. Member for Cardiff West asked a good question about why we are also removing the same subsection in the next clause of the Bill, in clause 51(3), which says “Omit subsection (6)” of the Academies Act 2010. The reason for that is that clause 51(3) provides that academy status will for the first time be able to apply to post-16 education and alternative provision. It is likely that sections 50 and 51, when the Act gets Royal Assent, will have different commencement dates, and we are keen that all other academies outside those covered in section 51 should not be delayed in having that bureaucracy removed, so it is a timing issue. But the hon. Gentleman is absolutely right to raise the issue so that it is now on the record. There are no cost implications to the legislative change. It will have no financial impact on schools.
The hon. Gentleman also raised the issue of whether schools can still select. The answer is yes, schools can choose to have a specialism, and if they do, they can then select 10% by reference to it. What we have done as far as maintained schools are concerned is remove the bureaucracy. On that basis, I hope that the Committee will agree to clause 50 standing part of the Bill.

Question put and agreed to.

Clause 50 accordingly ordered to stand part of the Bill.

Clause 51

Iain Wright: I beg to move amendment 192, in clause51, page41,line10,leave out ‘(2)’ and insert ‘(1A)’.

Hywel Williams: With this it will be convenient to discuss the following: amendment 193, in clause51, page41, line10, at end insert—
‘(1A) In subsection (1), after “enter”, insert “, by order”.’.
Amendment 194, in clause51,page41,line10,at end insert—
‘(1A) The Secretary of State must lay before Parliament the criteria by which he judges whether a person is a fit and proper person to whom he may enter into Academy arrangements, and these criteria must be approved by resolution of both Houses of Parliament before they come into effect.’.

Iain Wright: The amendments seek to ensure consultation prior to a school’s application to become an academy, and to ensure that the Secretary of State sets out to Parliament the criteria that he will use to determine who he will enter into academy arrangements with. I told the Minister when we considered schedule 11 that I am not convinced of the need for new entrants to the 16 to 19 market. During our oral evidence sitting on 3 March, I asked Martin Doel of the Association of Colleges what the provisions will add in terms of 16 to 19 providers. He concluded:
“I would first characterise the 16 to 19 sector as the most competitive within education. The greatest plurality of suppliers already operates in this area, including independent learning providers, sixth-form colleges, general further education colleges and school sixth forms.”
He went on to say that he found it
“hard to see what gap it is closing.”––[Official Report, Education Public Bill Committee, 3 March 2011; c. 103, Q197.]
I understand that we will not, subject to your guidance, Mr Williams, be having a clause stand part debate, but will the Minister put more flesh on the bones of what the precise reasoning is behind the provision? How will it add value? Is he trying to address something that is lacking in the current provision?
Amendment 192 would require the Secretary of State to approve an academy funding agreement—the academy agreement—by order. The fact that the Academies Act 2010 has to be read with the Education Act 1996 means that the Secretary of State, when making or remaking an academy order, will have to lay the academy agreement before Parliament and be subject to a level of parliamentary scrutiny. The academy agreement will also include the memorandum and articles of association of the company that makes up the academy trust. Any changes to the sponsors will, therefore, require a new order.
What is the Government’s current position on chains? We did not really discuss this issue during our scrutiny of the Academies Bill over the summer, largely because it was done on the Floor of the House in a matter of about 10 minutes as I recall, despite its importance. I will let that lie for the moment. It is right that numbers of academies can work together and provide that sort of common brand. We in the former Labour Government helped to put that in place. We had a list of chains approved to take on new academies.
There have been developments since the new Government took over. TheTimes Educational Supplement reported on 18 March:
“An academy sponsor has entered talks with the Government about its plans to open a ‘super-chain’ of up to 250 state schools within five years.”
How far will that go? Does the Minister anticipate a maximum size to an academy chain? Will there be a time when there are 152 local authorities? Will a chain replace all provision within the local authorities, or will there be fewer than 152 chains, with so-called super chains offering schools in a sub-regional region or even national capacity? What will they look like and what will their corporate identity be? In evidence to the Committee, the overview and scrutiny committee of the Tory-Lib Dem Birmingham city council stated that “the paper”—“The Importance of Teaching” White Paper—
“implies that Local Authorities have become too corporate and as a consequence that they stifle initiative. However it is likely that over time chains of academies will develop the same tendency and as a consequence will result in the same problems as those that have been perceived with Councils.”
Again, will the Minister comment about the policy position with regard to that? The Secretary of State obviously has a key interest in this matter, because in order to agree a new academy agreement, he must approve changes to the memorandum. What role does the Secretary of State have in the development of chains? How accountable is he to Parliament for decisions he takes about them, and how soon are decisions about chains published on the Department’s website?
Amendment 194 addresses the suitability of persons, both individual and corporate, to be members of an academy trust. With respect, I point out to the Minister that the level of scrutiny has plummeted with the formation of the new Government. There is now only one side of A4—in the form of a PDF document—on the Department for Education website referring to due diligence checks and the demonstration of sufficient capacity and capability, but there is no evidence or documentation about how that will be measured. Clear education aims and objectives are required, but again, we have no idea about the criteria by which those will be measured.
Are there any characteristics of potential corporate members that might lead the Secretary of State to reject them? For example, what about the tobacco industry? As my hon. Friend the Member for Cardiff West kindly referred to my history as a turf accountant, what about gambling firms? What about the adult entertainment or alcohol industries? Does the Secretary of State or the Minister think that such organisations would be appropriate corporate members?
Does the Secretary of State have any guidance on how a chain can demonstrate capacity? How much should a chain be allowed to cream off from academies within the chain to pay for management, or for corporate central services? Should the chain’s chief executive be paid more than the Prime Minister? Should chains be inspected? Will the Minister give us more information about what he thinks would be appropriate? As this is a probing amendment, he has the opportunity to do that.
While the funding agreement will specify how an academy can be broken from its chain through poor performance, does the Secretary of State have any power under the Bill to intervene directly in a failing chain? Should corporate members of chains be allowed to make a profit from services sold to academies within the chain, within the restrictions of charity law, the academy agreement, and the articles of association?
The Committee has been asked to approve the provisions, even though we are very much in the dark about them. These are probing amendments, designed for the Minister to shed more light on what is potentially a very significant change to the educational landscape of the country and the manner in which academies operate.

Nick Gibb: I will address some of the wider points that the hon. Gentleman raises. The clause amends the Academies Act 2010 to provide for three types of academy, and it sets out the characteristics of each. It will extend our free schools policy by making academy status available to institutions serving 16 to 19-year-olds and to alternative provision, which the relevant legislation currently excludes.
The hon. Gentleman asked whether something was lacking in existing provision. We agree with him that much post-16 provision is excellent, especially in sixth form colleges. Not all areas are as well served as others. An important aspect of the 16 to 19 free school extension is that it allows parent groups and other organisations to establish a 16 to 19 free school where there is demand for a different type of provision, or where local provision is inadequate.

Iain Wright: Earlier, in an intervention on the Minister for Further Education, Skills and Lifelong Learning, I asked a question, and I am not sure whether I got an answer. That might have been because I misheard, but do all new sixth form colleges now have to be 16 to 19 academies?

Nick Gibb: No. That was the point of the provisions that we discussed earlier. There is now an alternative route, and that is absolutely right.
The hon. Gentleman also asked about chains of academies. We welcome chains, but within sensible parameters. We do not want chains to replicate local authorities, and we want them to be of a size that promotes partnership and support. There are, therefore, limits to the size of a chain that we would approve, and through the funding agreement, the Secretary of State has intervention powers in relation to academy chains.
I turn now to the amendments. May I first assure the hon. Gentleman that the Government take very seriously their role in scrutinising potential free school proposers and academy sponsors? We have a great responsibility to ensure that we entrust the education of young people only to those who have the capacity, expertise and reliability to deliver the highest standards of education. The academies programme is one of the areas of education policy where the Government are building on the best policies of the previous Administration. Academies were a great success under the Administration supported and served in by Opposition Members. The Government are building on that and expanding that success. That is why we are extending the freedoms that academy status brings to more schools and we are setting up free schools to meet the needs of parents, pupils and communities. There are now more than 467 academies and all have been opened without the mechanisms that these amendments seek to introduce.
A rigorous approval process for organisations wishing to become academies is already in place, and a range of due diligence checks are carried out on those who wish to open a free school or sponsor an academy. Hon. Members may be aware that on 17 March the Department for Education published details of the revised schools application process which set out the criteria according to which all applications and their proposals will be assessed. That is mainly because of the large number of applications coming forward to be free schools.
In order to assess the suitability of applicants, the Department will carry out a range of financial and non-financial due diligence checks. Guidance available on the Department’s website, which I think was the page the hon. Gentleman referred to, makes it clear that in order to be approved, applicants will need to demonstrate that they would support UK democratic values, including respect for the basis on which UK laws are made and applied, respect for democracy, support for individual liberties within the law, and mutual tolerance and respect. The previous Government did not consider parliamentary approval for the criteria used to enter into academy arrangements. They did not feel that was necessary and nor do this Government.
Furthermore the Academies Act 2010 requires the Secretary of State to prepare, publish and lay before Parliament annually a report containing information on academy arrangements entered into and the performance of academies during the previous year. Members of academy trusts are required by their charitable objectives to act in the best interests of the academy. If the hon. Gentleman looks at the website, he will see that a range of due diligence matters are covered: financial propriety, things like criminal convictions and involvement in illegal activities such as tax avoidance, and working in certain industries such as the ones he cited. They will be taken into account and regarded as inappropriate. With those assurances, I hope that he will feel able to withdraw his amendment.

Iain Wright: I thank the Minister for his clarification. I am still not certain whether he believes there should be a maximum natural limit in respect of these super chains. The article in the Times Educational Supplement last week talked about 250 state schools. He did not comment on that. I am not sure whether that was just an omission or was deliberate, but does he have a policy position on that? I take what he says about due diligence and appropriate persons. The purpose behind our amendment about fit and proper persons was to ensure that we could scrutinise as much as possible whether someone is fit and proper.
I am still not sure whether, under the massive expansion that the Government are presiding over in the academies programme, defence contractors or Hugh Hefner could open an academy or some sort of chain. What sort of person is the Minister thinking of in terms of that due diligence? He has not explained that. In order to make progress I give him notice that I want to reflect on this and possibly to return to it on Report because we did not have time to deal with it during the consideration of the Academies Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Iain Wright: I beg to move amendment 195, in clause51,page42,line3,leave out ‘principally’.
I have only one question. I note the helpful summary, E 109, that the Government have provided to the Committee. The amendment aims simply to probe the Minister on whether he sees 16 to 19 academies having a role in the education of children of compulsory school age as it currently stands—below the age of 16—and is likely to be with the university technical colleges. We have discussed school children attending further education colleges, which can be positive in certain circumstances. Does the Minister think that that could happen under the measure?

Nick Gibb: The Government want to widen the choice of provision for young people, which would encourage them to continue in education after their GCSEs and to develop their knowledge and skills further. That is why we are legislating so that 16 to 19 academies can be opened. The Government’s intention is that such academies will principally be concerned with educating students between the ages of 16 and 19 years old, but we wish to take a permissive stance towards that. It would not be right for such academies to be restricted only to that age range; they should have the flexibility to decide how best to meet the needs of their communities.
Not all young people will have completed their courses of study before they reach their 19th birthday, and some may need extra time to re-sit modules before they gain their qualification. We believe, therefore, that a 16 to 19 academy should also be able to enter local partnership arrangements with local schools, involving students who are under 16. Many FE colleges work in partnership with local secondary schools, for example, to improve vocational provision at key stage 4, so 16 to 19 academies should be able to participate in or instigate those kinds of arrangements.
We want 16 to 19 academies to be able to operate on a par with sixth-form colleges and other post-16 provision. As an example, new sixth-form colleges can start by offering up to 20% of their places to post-19 students, because they are principally concerned with the education of 16 to 19-year-olds, but not restricted from offering limited places to older students. If, therefore, either a sixth-form college or a 16 to 19 academy wanted to offer post-16 education, it would need the agreement of the Skills Funding Agency, which would fund it.
The hon. Gentleman’s amendment would remove the word “principally” from the relevant part of clause 51, which would mean that 16 to 19 academies could only educate 16 to 19-year olds. They would not be allowed to let any child under 16 to attend the academy. That is not our intention; we want the new academies to have flexibility. On those grounds, he has flushed out the policy, but his amendment would do enormous damage to the provision.

Iain Wright: The Minister has shed light on the matter, for which I thank him. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Iain Wright: I beg to move amendment 196, in clause51, page42, line13,after ‘age’, insert
‘for periods of no longer than six months’.

Hywel Williams: With this it will be convenient to discuss amendment 199, in clause52,page43,line3,at beginning insert—
‘(A1) The Secretary of State must by regulations ensure that the arrangements that apply to pupil exclusions from an Alternative provision Academy are the same as those that apply to pupils in attendance at a Pupil Referral Unit.’.

Iain Wright: The amendments probe the Government’s thinking with regard to what is meant by an alternative provision academy. In front of me is E 108 from the Department for Education, which, again, is incredibly helpful in providing greater detail. However, I would like the Minister to expand on the points in that document.
I am uncertain, as the Bill stands, notwithstanding E 108, about the Government’s intentions regarding pupils and the relationship—particularly the time period—that we will have in the alternate provision academies. Do the Government see pupils as having a long-term career in such academies and, if not, why not and what is the intention behind the provision? Does the Minister accept our proposed change in amendment 196, where the stay would be limited to six months?
I would also ask the Minister to speak to paragraph 6 of E 108, which I think is linked to some extent with the amendments, because again I am concerned about the darkness in which we are scrutinising legislation. Paragraph 6 states:
“How this new type of alternative provision will fit into the existing legal framework is complex and because of the complexities the Government is not yet in a position to make all the necessary consequential amendments.”
I am taking your guidance, Mr. Williams, as to whether we have time for a clause stand part debate at five to six, but can the Minister expand on that paragraph, because it concerns me that we are making legislation in the dark? Can he give us any further information, if not now, perhaps on Report, although I would prefer it now?

Nick Gibb: Pupils in alternative provision are some of the most vulnerable in education. They need and deserve a good education just as much as pupils in mainstream schools.
Amendment 196 proposes that pupils of compulsory school age attending an alternative provision academy would be able to do so for no longer than six months. I agree with the hon. Member for Hartlepool that, for many pupils, returning to mainstream education as soon as possible gives them the greatest possible chance of achieving their potential. Our intention through this clause is to support improvement in the quality of alternative provision by giving pupil referral units access to the same freedoms that are energising other parts of the education system. Although some pupil referral units are outstanding, some as the hon. Member for North West Durham said earlier, are poor. Low outcomes for pupils attending pupil referral units can no longer be acceptable. For example, in 2009, of pupils in pupil referral units and hospital schools, only 1.7% achieved five or more GCSEs at A* to C.
Limiting the time pupils could spend in alternative provision academies through legislation could have undesirable consequences. If an alternative provision academy was best placed to provide high-quality education we would not want to deny a pupil that. Pupils could end up being forced to return to mainstream education before they are ready to do so. That cannot be good for either the pupil or the school. Pupil referral units are not limited to only having pupils for a period of six months, and we see no reason why this should be the case for alternative provision academies. It should be for the professionals to make that decision.
On amendment 199, I want to reassure the hon. Member for Hartlepool that we do intend that exclusion arrangements that currently apply to pupil referral units are applied to alternative provision academies. Exclusions arrangements for academies are currently applied through funding agreements. We have heard during the debate on clause 4 that in the future we may also have need for regulation in the area of exclusions. We intend to follow broadly the same approach for alternative provision academies and, if regulations are needed to secure a consistent position across types of institution, we will ensure they are in place.
On the consequential amendments, through the regulations, they are simply that—technical amendments as a consequence of the provision. With those words, I hope that the hon. Gentleman will be able to withdraw his amendment.

Iain Wright: The Minister has reassured me to some extent. I will press him on two matters, if I can in the couple of minutes I have. Can he outline briefly where he says that the existing legal framework is complex? What does he mean by that? Secondly, I know the amendment as drafted was rigid with its six months provision, but he must understand that we do not want people to languish in the alternative provision academies. Can he reassure me on that? I know he trusts the professionals, as we do, but what process will he put in place to ensure that, if a pupil could be best placed in mainstream education, that will happen?

Nick Gibb: It is a matter of trusting professionals, and we trust that will happen.
The legal framework is complex because the 16-to-19 and PRU provisions are scattered through a lot of statutes, many of which came into being as a result of the previous Government. However, we are working on this and we expect to provide more detailed information later in the passage of the Bill. There is an established precedent that that is an appropriate way of dealing with consequential amendments. The matter is technical, but I hope the hon. Gentleman is reassured.

Iain Wright: Even though the Minister used the word “technical”, I accept his reassurance. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(James Duddridge.)

Adjourned till Tuesday 5 April at Nine o’clock.